315 Mass. 366 | Mass. | 1944
On August 11, 1940, the plaintiff was injured by the defendant’s operation of his automobile upon a public way under such circumstances that the jury might find the defendant liable. But the plaintiff did not bring this action until November 28, 1941, after the expiration of the year allowed for the bringing of such an action by G. L. (Ter. Ed.) c. 260, § 4, as latest amended by St. 1937, c. 385, § 9. The judge directed a verdict for the defendant. The issue in the case is whether the jury could have found that the defendant was estopped from setting up the statute as a defence. McLearn v. Hill, 276 Mass. 519, 527.
The facts by which the right of the plaintiff to go to the jury must be tested appear by agreement of the parties from the plaintiff’s opening and offer of proof and from admissions of the defendant. These facts, in so far as they need be stated, are as follows: The defendant was insured under a compulsory motor vehicle liability policy which provided
On this evidence the jury could have found that at a time when the plaintiff had a perfectly good cause of action Murdoch persuaded him not to seek legal advice and to wait until the bar of the statute fell by promising him that he could bring the matter up later and could have at least $1,500 at any time. The jury could have found that the plaintiff
Murdoch’s conduct is binding upon the defendant. By the terms of the policy the defendant had conferred “the sole right of settlement and defense” upon his insurance company. By so doing he not only authorized the company to conclude a settlement by which he would be bound but he also necessarily authorized the company to conduct the negotiations required to make such a settlement. Just as the defendant would have been bound by the effect of these negotiations if they had resulted in a settlement, so also is he bound when they result in an estoppel. He cannot turn over to an insurer the whole management of the subject of settlements in his behalf and accept the benefit of the insurer’s efforts when they are successful and relieve him from liability but repudiate their consequences when they affect his defence adversely. It is no answer to say that the company acts in its own behalf, and that the defendant cannot control its conduct. It does act in its own behalf, but it also acts in behalf of the defendant to the extent of his interest in the defence, although by the terms of the contract the company may exercise its own judgment to its own advantage uncontrolled by the defendant. Long v. Union Indemnity Co. 277 Mass. 428. Abrams v. Factory Mutual Liability Ins. Co. 298 Mass. 141, 143-144. Service Mutual Liability Ins. Co. v. Aronofsky, 308 Mass. 249, 252. See Shaw v. Victoria Coach Line, Inc. 314 Mass. 262; Hilker v. Western Automobile Ins. Co. 204 Wis. 1 (overruling Wisconsin Zinc Co. v. Fidelity & Deposit Co. 162 Wis. 39); G. A. Stowers Furniture Co. v. American Indemnity Co. (Tex. Com. App.) 15 S. W. (2d) 544; Douglas v. United States
And it could have been found that Murdoch acted throughout within the authority conferred upon him as an investigator by the company. We think it could have been found to be within the ostensible authority of a claim agent or investigator authorized to make an offer of settlement to state when the money would be paid or how long, within reason, the offer would remain open. In substance, that is what Murdoch did. See Brooks v. Shaw, 197 Mass. 376; Pritchard v. Old Colony Street Railway, 216 Mass. 221; Shapiro v. Security Ins. Co. 256 Mass. 358; Lewis v. Chapin, 263 Mass. 168, 172; Ferris v. Boston & Maine Railroad, 291 Mass. 529, 532-533; Alfred J. Silberstein Inc. v. Nash, 298 Mass. 170, 172-173.
The plaintiff’s exceptions are sustained, and in accordance with the stipulation of the parties judgment is to be entered for the plaintiff in the sum of $1,500.
So ordered.