Woznicki v. Travelers Ins. Co.

• Decision Date: 31 January 1938
• Citation: 299 Mass. 244,12 N.E.2d 876
• Parties: ALICE WOZNICKI, administratrix, v. TRAVELERS INSURANCE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

299 Mass. 244

12 N.E.2d 876

ALICE WOZNICKI, administratrix, v. TRAVELERS INSURANCE COMPANY.

Supreme Judicial Court of Massachusetts, Worcester.

January 31, 1938

September 28, 1937.

Present: RUGG, C.

J., FIELD, DONAHUE & QUA, JJ.

Insurance, Motor vehicle liability.

One driving an automobile by permission of and accompanied by a bailee to whom the owner gave no authority to allow others to drive it was not a

"person responsible for" its operation with the owner's consent within the owner's policy of compulsory motor vehicle liability insurance.

BILL IN EQUITY filed in the Superior Court on July 2, 1936. A final decree dismissing the bill was entered by order of Burns, J. The plaintiff appealed.

F. T. Mullin, for the plaintiff. D. F. Gay, for the defendant.

RUGG, C.J. This is a suit in equity under G. L. (Ter. Ed.) c. 175, Sections 112 113, and c. 214, Section 3 (10), to enforce the liability of the defendant under a policy issued by it pursuant to the compulsory motor vehicle insurance law. G. L. (Ter. Ed.), c 90, Sections 34A-34J. The trial judge made findings and rulings, and ordered a decree to be entered dismissing the bill. The allegations of the bill admitted by the answer are that the plaintiff is the administratrix of one Plasse, who was fatally injured on September 29, 1932, while walking on a public highway in Webster, by a motor vehicle owned by one Essex and driven by one Rea. The motor vehicle was insured under the compulsory motor vehicle insurance law by a policy issued by the defendant. Later, the plaintiff brought an action against said Rea and recovered a judgment for a substantial amount for the death and conscious suffering of her intestate, which had not been paid in whole or in part after thirty days and before the present suit.

The trial judge found these facts: On the evening of the accident, Essex lent his motor vehicle to one Loughlin, a neighbor, who, to the knowledge of Essex, had no license to operate motor vehicles. Several times prior to the day of the accident, Essex had lent his motor vehicle to Loughlin, who had permitted other persons to drive it, but it was not found that Essex knew of this. On the night in question, when Loughlin asked Essex if he could use the car to take a girl friend to Raad's Point, Essex said "Yes," and handed him the keys. Shortly after Loughlin took the motor vehicle, he met Rea and one Zerska and asked them to take a ride. Loughlin was given the full use and custody of the car. No complaint was ever made by Essex against Rea or Loughlin arising out of the operation of the motor vehicle. Supplementing these findings, the trial judge further found that the party, which consisted of Loughlin, Miss Beaudreau Rea and Zerska, drove to Webster. Loughlin and Zerska left the car at Webster, Miss Beaudreau and Rea remaining therein. When Loughlin and Zerska returned to the car, Rea was on the front seat behind the wheel and Miss Beaudreau beside him. Rea said, "I'm going to drive." Miss Beaudreau and Loughlin then got into the rear seat, Zerska got into the front seat, and the party started back toward Worcester with Rea driving. They had proceeded about two miles when the accident happened. Other findings were that Loughlin had...