Arnold v. JacobsArnold v. Jacobs
- Reporters:
- , ,
- Before:
- Lummus
The plaintiff administrator of the estate of Rosetta M. Jacobs brings this bill under
The plaintiff’s intestate, on January 25, 1937, was hurt while riding in the automobile, which came into сollision on a public way in Swampscott with an automobile operated by one Delisio. The plaintiff’s intestate died of her injuries *83on January 29, 1937, without conscious suffering. She was survived by her husband, Charles H. Jacobs, and her two children, Morton R., aged sixteen, and Charlotte, aged twelve. The automobile was owned by her husband, who was named as insured in the policy, and was not present at the time of the collision. Morton R. Jacobs was operating the automobile with his consent. A demand for satisfaction of the judgment was duly made upon each defendant, but nothing was paid.
The policy defined a “guest occupant” as “any person, other than an employee of the owner or registrant of a motor vehicle оr of a person responsible for its operation with the owner’s or registrant’s express or implied consent, being in or upon, entering or leaving the same,” except a passenger for hire. The compulsory automobile liability insurance law had ceased to apply to guest occupants like the plaintiff’s intestate (St. 1935, c. 459, §§ 1, 2, amending
After a final decree ordering the insurer to pay the entire judgment with interest and costs, the insurer appealed. It makes three contentions in reduction of its liability. Thesе will be considered in order.
*841. It contends that it should be credited with $2,000 paid by Delisio in compromise of an action brought against him by the plaintiff administrator to recover for the same death, in consideration of which sum the plaintiff administrator gave Delisio a covenant not to sue him. If the damages recoverable for death had been compensatory, the plaintiff administrator would have been entitled to compensation only once, and would have been required to credit the $2,000. O’Neil v. National Oil Co. 231 Mass. 20. Solomon v. Dabrowski, 295 Mass. 358, 359. Karcher v. Burbank, 303 Mass. 303. Daniels v. Celeste, 303 Mass. 148. Sacchetti v. Springer, 303 Mass. 480. But notwithstanding the fact that in some aspects the action for death has remedial purposes and has even been said to be in a sense “compensatory” (Sullivan v. Hustis, 237 Mass. 441, 447 et seq.; Putnam v. Savage, 244 Mass. 83), the damages are assessed “with referencе to the degree of . . . culpability,” within the limits of $500 (since St. 1941, c. 504, § 3, $1,000) and $10,000.
The statute, following a pattern familiar in criminal and penal provisions, limits the penalty that can be imposed upon one person for causing one death. It does not limit the amount that can be collected from a number of wrongdoеrs for one death. Logically, as in the criminal law, each wrongdoer may be made to suffer the maximum penalty, no matter how many are guilty. For this reason, the amount of money paid by Delisio is immaterial. The reasoning in Porter v. Sorell, 280 Mass. 457, and Partridge v. United Elastic Corp. 288 Mass. 138, 146, 147, requires this conclusion. The case of Leonard v. Lumbermens Mutual Casualty Co. 298 Mass. 393, is not in point, because in that *85case there was only one real wrongdoer, although the doctrine of respondeat superior made his master responsible as well.
2. The executor or administrator in whom the statute vests the cause of action for death is required to hold the money recovered “to the use of the surviving wife or husband and сhildren ... in equal moieties.”
The insurer contends that Charles H. Jacobs, the named insured, and Morton R. Jacobs, the described insured, arе precluded by the terms of the policy from sharing in its benefits, and that consequently the insurer is absolved from paying anything except the share of the judgment that would be distributed to Charlotte Jacobs. The insurer contends that the requirement of the policy that it pay “all sums which the insured [the described insured Morton R. Jacobs] shall become obligated to pay” beсause of “bodily injury, including death at any time resulting therefrom,” sustained by “any person or persons,” does not contemplate a payment that ultimately will enure to the use of eithеr the named or the described insured. The insurer relies on MacBey v. Hartford Accident & Indemnity Co. 292 Mass. 105. In that case the named insured, while riding in her own automobile, was hurt by the negligence of one Smith whom she allowed to operate it. After obtaining judgment against Smith, the named insured sought to reach and apply the insurance money arising from her own compulsory motor vehicle liability insurance policy, in which she was the named insured and Smith a described insured. From the purpose of the statute to protect others rather than the owner of a motor vehicle, and from the statutory language — “indemnity for or protection to the insured and any person responsible for the operation of the insured’s *86motor vehicle with his express or implied consent against loss by reason of the liability to pay damages to others” — this court inferred that the named insured was not intended to have the benefit of the insurance in satisfaction of a judgment against the described insured. A similar decision was made in Cain v. American Policyholders’ Ins. Co. 120 Conn. 645, under a noncompulsory coverage. Cases elsewhere are in conflict. See, for examples, Farmer v. United States Fidelity & Guaranty Co. 11 Fed. Sup. 542, noted in 49 Harv. Law Rev. 836; Archer v. General Casualty Co. 219 Wis. 100; Howe v. Howe, 87 N. H. 338. In Oliveria v. Preferred Accident Ins. Co. 312 Mass. 426, 143 Am. L. R. 1391, the named insured was killed by the negligence of the described insured, and it was held that the compulsory policy did not cover a judgment for death against the described insured.
In the present case those decisions have no application. Even if the vital words of the policy, “any person or persons,” be construed to mean the same as the word “others” in the compulsory statute, the deceased in this case was a person other than either the named or the described insured. Whether the statutory beneficiaries include the named or the described insured, is immaterial. The policy, in speaking of liability for “bodily injury, including death at any time resulting therefrom, sustained by any person or persons,” meant just what it said, “liability for deaths of the same persons liability for whose bodily injuries is also covered.” Oliveria v. Preferred Accident Ins. Co. 312 Mass. 426, 429. The deceased was such a person. The plaintiff administrator is entitled to reach and apply the insuranсe money.
3. It may be that Morton R. Jacobs will not be allowed to profit from his own wrong by sharing in the insurance money. O’Connor v. Benson Coal Co. 301 Mass. 145. That question is not before us at this stage. Oliveria v. Oliveria, 305 Mass. 297, 303. Arnold v. Jacobs, 305 Mass. 427, 429. For that reason there was no need of making the various statutory beneficiaries parties to the bill. O’Rourke v. Sullivan, 309 Mass. 424. That question may arise later *87when the administrator comes to distribute the insurance money.
It was sufficient foundation for the judgment imposing the penalty that there was one benеficiary whose fault did not contribute to the death. O’Connor v. Benson Coal Co. 301 Mass. 145, 148. See also Hess v. Boston Elevated Railway, 304 Mass. 535, 539. The fact, if it be a fact, that Morton R. Jacobs cannot be a beneficiary of the penalty, affords no reason for rеducing the penalty. The insurer agreed to satisfy the penalty, and has no more ground for reducing it than has Morton R. Jacobs.
The insurer relies on the provision in the policy that “in the еvent of any payment under this policy, the company shall be subrogated to all the insured’s rights of recovery therefor and the insured shall execute all papers required and shall do everything that may be necessary to secure such rights.” That provision can be of no avail to the insurer unless it is determined in proceedings for distribution that Morton R. Jacobs is entitled to share in the distribution. In the meantime the insurer must pay the administrator.
Decree affirmed with costs.