Williams v. Travelers Ins. Co.

• Decision Date: 02 November 1953
• Citation: 330 Mass. 476,115 N.E.2d 378
• Parties: WILLIAMS v. TRAVELERS INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 378

115 N.E.2d 378

330 Mass. 476

WILLIAMS v. TRAVELERS INS. CO.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 21, 1953.

Decided Nov. 2, 1953.

Charles W. Proctor, Worcester, for plaintiff.

Sumner W. Elton, Boston, for defendant.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS and COUNIHAN, JJ.

RONAN, Justice.

This is a bill in equity under G.L. (Ter.Ed.) c. 214, § 3(10), to reach and apply the obligation of the defendant insurance company under a motor vehicle liability policy issued to Donald M. Williams, father of the minor plaintiff, in satisfaction of a judgment which the plaintiff recovered in an action of tort against one Carey C. McKissick for personal injuries resulting from being struck by a truck owned by Williams and operated by McKissick upon private premises adjoining the house where the plaintiff lived. The judge found that McKissick and Williams testified falsely in the action of tort intending to deceive the company in matters material to the action; that the company was prejudiced in its attempt to defend successfully the action; that McKissick and Williams violated the cooperation clause of the policy; and that the company was not estopped to set up this defence. The plaintiff appealed from a final decree dismissing the bill.

The policy covered the operation of the truck not only by Williams but also by McKissick who was driving it at the time of the accident with the knowledge and consent of Williams. Goldstein v. Bernstein, 315 Mass. 329, 332, 52 N.E.2d 559; Sheehan v. Goriansky, 321 Mass. 200, 203, 72 N.E.2d 538, 173 A.L.R. 497.

The truck was being driven upon private property and was therefore not covered by the compulsory insurance provisions of the policy. The plaintiff would not have any rights to have recourse to the policy for the satisfaction of his judgment if the company was exonerated from liability to pay by reason of breach of the conditions of the policy by the insured. Sanborn v. Brunette, 315 Mass. 231, 232, 52 N.E.2d 384; Sweeney v. Frew, 318 Mass. 595, 597, 63 N.E.2d 350. The policy contained a cooperation clause the terms of which, the company contends, were violated by Williams and McKissick. McKissick was the only judgment debtor and it is the alleged obligation of the company to him which the plaintiff is seeking to reach and apply to the payment of the judgment. The cooperation clause is binding upon him as well as upon Williams. Searls v. Standard Accident Ins. Co., 316 Mass. 606, 608, 56 N.E.2d 127; Metropolitan Casualty Ins. Co. v. Blue, 219 Ala. 37, 121 So. 25; Margellini v. Pacific Automobile Ins. Co., 33 Cal. App.2d 93, 91 P.2d 136; Curran v. Connecticut Indemnity Co., 127 Conn. 692, 699, 20 A.2d 87; Zitnik v. Burik, 395 Ill. 182, 69 N.E.2d 888; Marcum v. State Automobile Mutual Ins. Co., 134 W.Va. 144, 59 S.E.2d 433.

McKissick was spending his vacation with his cousin, the plaintiff's father, and on the day of the accident was driving the truck assisting the latter in delivering wood. McKissick at about 7:30 P.M. drove into the driveway between the house where the plaintiff lived and the house of the plaintiff's grandfather. These houses were about 15 feet apart. McKissick stopped the truck. Williams got out on the right side and helped out his son who was then a little over four years of age and had fallen asleep in the cab of the truck. McKissick got out of the cab on the left side about four feet from the door of the plaintiff's house. Williams went toward his father's house. Williams decided to make another delivery of wood and told McKissick to drive forward to the wood pile. Williams intended that McKissick and he should have their supper while the truck was being loaded by someone from his father's house. McKissick got in and started the truck, and the truck struck and injured the plaintiff. One of the crucial questions was the position of the plaintiff relative to the truck when it started.

We need not detail the contents of the statements given by Williams and McKissick to the investigators of the company. It is enough for present purposes to point out that Williams gave a written statement which he signed to the effect that, after he and the plaintiff left the truck, the plaintiff went around in front of the truck as it started forward and was struck; that he told another investigator that he did not know what had happened or where the plaintiff was as he, Williams, had his back to the truck; and that the accident happened in one half minute after the truck had first stopped in the driveway. McKissick gave three written statements which in substance stated that the accident happened in one minute or less after the truck arrived in the driveway. He also answered one interrogatory to the same effect. He answered a second by stating that the plaintiff stepped in front of the truck and was struck, and a third by stating that he did not see the plaintiff since he was so small that he could not be seen over the hood, radiator, and fender of the truck. Both he and Williams testified in the tort action that fifteen minutes elapsed from the time they got out of the truck to the time of the accident. Both in the present suit denied any intention to defraud the company and offered evidence attempting to explain any inconsistencies in their previous statements.

Each was required when requested by the company to furnish fully, accurately, and truthfully whatever information he possessed concerning the accident in order that the company might determine whether it had a defence or whether the matter should be settled and, if so, in view of the nature of questions of law that might be presented as shown by the facts disclosed by the information given by the insured, the amount that should be paid in compromising the claim. In all his communications with the company relative to the claim the insured must be truthful and act in good faith. A misstatement concerning a trivial or inconsequential matter or an honest mistake would not constitute a breach of the co-operation clause. It would not be unusual to find minor discrepancies between a written statement made a few days after an accident and the testimony of a reliable witness under oath given a few years thereafter. Norwich Union Indemnity Co. v. Haas, 7 Cir., 179 F.2d 827; George v. Employers' Liability Assurance Corp. Ltd., 219 Ala. 307, 122 So. 175, 72 A.L.R. 1438; Farmers Automobile Inter-Insurance Exchange v. Konugres, 119 Colo. 268, 202 P.2d 959...