276 Mass. 206 | Mass. | 1931
The plaintiff brought her bill in equity under G. L. c. 175, § 113, as amended by St. 1923, c. 149, § 2, which authorizes a judgment creditor who has suffered loss or damage on account of bodily injury or of damage to property, to compel the application to the judgment of insurance money due to the judgment debtor if, at the accrual of the cause of action, the debtor was insured against liability for such loss. She had recovered judgment against the defendant Fishman for injury received in January, 1927, and sought to compel payment out of insurance claimed to be due to Fishman from the defendant New Jersey Fidelity & Plate Glass Insurance Company, which had issued a policy insuring Fishman against loss arising from accident on the premises where the plaintiff was hurt. The bill was taken as confessed against Fishman, who defaulted. The insurance company admitted that the policy had issued and was in force in January, 1927; but denied liability to Fishman or the plaintiff. It set up that the policy required as conditions of liability that the assured, on the occurrence of an accident
On motion eight issues were framed for a jury. The cause is before us upon exceptions claimed at the trial to the jury, and an appeal from a final decree dismissing the bill with costs. At the jury trial the plaintiff claimed exception to the denial of her motion that two additional issues be framed. The original order framing the issues provided “that such other issues be framed as may be necessary by the trial court.” Whether any and, if any, what additional issues should be framed and submitted to the jury under this order rested in the discretion of the trial judge. No abuse of discretion in denying the motion appears. Bolton v. Van Heusen, 249 Mass. 503, 506.
There is no dispute that at no time did the assured notify the insurer in writing that suit had been brought by the plaintiff or send to it any summons or other process issued in that action. The plaintiff’s writ against Fishman was dated May 19, 1927. It was served on June 1, and was entered in July, 1927. Fishman gave the summons to an attorney, Applebaum; filed a petition in bankruptcy; and troubled himself no more about it. He was defaulted for failure to answer interrogatories on October 4,1928; damages were assessed January 7, 1929; judgment entered on January 28, and execution issued January 29,1929. This bill was filed on February 6, 1929. He first learned of the accident some days after May 12, 1927, from a letter, dated May 12, 1927, sent to him by the plaintiff’s attorney, and about May 24, 1927, sent notice in writing to Thomas J. Nolan Co., the insurer’s agent at Boston. The letter of May 12 was transmitted to the office of the counsel of the insurer at Boston; and, in June, counsel for the plaintiff consulted
The failure so to notify and to send were breaches of conditions which relieved the insurer of liability under the policy, unless waived, Boston Elevated Railway v. Maryland Casualty Co. 232 Mass. 246, 251, and cases cited; or unless, as the plaintiff contends, knowledge of the situation obtained from the plaintiff and her attorney and the transaction with the latter satisfied the conditions of the policy or constituted estoppel or waiver. It has been decided that the effect of G. L. c. 175, §§ 112 and 113, as amended, is to relieve the assured of the necessity of satisfying the judgment recovered against him, before being able to recover against the insurer upon a policy insuring against the loss established by the judgment, and to enable the judgment creditor to secure the application of the insurance money upon his judgment without such proof. Lorando v. Gethro, 228 Mass. 181. McMahon v. Pearlman, 242 Mass. 367. Lunt v. Aetna Life Ins. Co. 253 Mass. 610. See Daly v. Employers Liability Assurance Corp. Ltd. 269 Mass. 1. The liability is not affected otherwise, and if, for other reasons, the assured cannot collect, the judgment creditor is in no better state. As was said in Lorando v. Gethro, 228
It is to be observed that the provisions applicable to liability upon policies of motor vehicle insurance under St. 1928, c. 381, § 5, amending St. 1925, c. 346, § 4 (4), are of wider scope; for by (5) of that section the policy must provide that "no violation of the terms of the policy and no act or default of the insured, either prior or subsequent to the issue of the policy, shall operate to defeat or avoid the policy so as to bar recovery within the limit provided in the policy by a judgment creditor proceeding under the provisions of said section one hundred and thirteen [of G. L. c. 175] and clause (10) of section three of chapter two hundred and fourteen.” Warecki v. United States Fidelity & Guaranty Co. 270 Mass. 233, 237. Vance v. Burke, 267 Mass. 394, Lundblad v. New Amsterdam Casualty Co. 265 Mass. 158. The express language of the statutes of 1925 and 1928 implies that § 113, under which the plaintiff here is proceeding, was not understood by the Legislature to secure a judgment creditor against defaults by the assured other than as therein specifically set out. It follows from what has been stated that there was no reversible error in refusing to submit to the jury issues with regard to whether notice of the bringing of suit and processes in the action at law were sent to the insurer. The first was immaterial, if the other breach existed. The latter breach is not denied. And, because there was no sufficient evidence of authority in any one with whom the plaintiff dealt to waive compliance by the assured with the conditions of the policy, and no evidence of any dealing with the assured, there was no error in refusing to submit an issue of waiver to the jury. The exceptions based upon this action of the trial judge must be overruled.
The plaintiff waives the exceptions claimed to refusals to give instructions requested at the jury trial. She insists,
The judge sitting in equity at the hearing after the jury issues were answered found as facts “that the defendant knew of the bringing of the law action referred to in paragraph numbered 3 of the bill of complaint soon after this
Exceptions overruled.
Decree affirmed with costs.