302 Mass. 383 | Mass. | 1939
The plaintiff recovered a judgment in the District Court of the United States for the District of Massachusetts against the defendant Dous, for personal injuries received by her on account of the operation of an automobile by Dous upon a highway in Topsfield, in this Commonwealth, on September 18, 1936. She brings this bill under G. L. (Ter. Ed.) c. 175, § 113, and c. 214, § 3 (10), to reach and apply, in satisfaction of her judgment, the obligation of the defendant company under an automobile liability policy issued by it to Dous at Portland, Maine, which contained an extraterritorial clause covering the operation of his automobile upon the public ways of this Commonwealth. The defendant company appealed from a final decree ordering it to pay the plaintiff's judgment.
The policy was issued under the law of the State of Maine which, in so far as material, provides that “The liability of every company which insures any person, firm, or corporation against accidental loss or damage on account of personal injury or death, or on account of accidental damage to property, shall become absolute whenever such loss or damage for which the insured is responsible, occurs.” Rev. Sts. of Maine (1930) c. 60, § 177. The rights of Dous against the company are fixed by the contract of insurance which must be construed in accordance with the law of the place where it was executed and delivered, Lundblad v. New Amsterdam Casualty Co. 265 Mass. 158; John Hancock Mutual Life Ins. Co. v. Yates, 299 U. S. 178, and may be ■ enforced here by such existing procedure as may be found appropriate. Weidman v. Weidman, 274 Mass. 118. Sleeper v. Stetson, 280 Mass. 248. The plaintiff in seeking recourse to the policy has no greater rights than Dous, and if he is not entitled to indemnity under the policy she cannot prevail. Kana v. Fishman, 276 Mass. 206. Goldberg v. Preferred Accident Ins. Co. 279 Mass. 393. Souza v. Car & General Assurance Corp. Ltd. 281 Mass. 117. Blair v.
The declaration in the tort action contained two counts, one for negligence and the other for the operation of an illegally registered automobile. There was a general verdict for the plaintiff. The defendant company contends that Dous falsely represented to it that he was a resident of Maine at the time he applied for and secured the insurance when in fact he was a resident of Malden, in this Commonwealth, and that, as the jury found that his automobile was illegally registered, the company cannot be held liable on the policy. It is clear that the charge to the jury, as shown by the company’s offer of proof, permitted the jury to find that the automobile was illegally registered even if Dous was a resident of Maine, if he had operated it for more than thirty days in this Commonwealth in 1936, prior to the date of the accident, G. L. (Ter. Ed.) c. 90, § 3, as amended by St. 1933, c. 188, Hanson v. Culton, 269 Mass. 471, or that it was illegally registered because Dous was a resident of this Commonwealth. Jenkins v. North Shore Dye House, Inc. 289 Mass. 561. If the jury came to the conclusion that the automobile was not properly registered merely on account of its presence here beyond the time allotted to a nonresident, then there is nothing in the company’s contention that the payment of indemnity for injury caused by such an automobile would be contrary to our public policy. The reverse is true. Todd v. Traders & Mechanics Ins. Co.
There was evidence that, a few months before the trial, the plaintiff’s attorney conferred with the attorney who tried the tort action for the company and showed him a certificate from the board of assessors of Malden, to the effect that Dous was assessed a poll tax for 1934, 1935 and 1936, and a copy of the application of Dous for the registration in Maine of his automobile for 1936, upon which his mailing address was set forth as 40 Maple Street, Malden, and his residence as 98 Grant Street, Portland, Maine. There was also evidence that, before the trial of the plaintiff’s action, this attorney for the defendant company had taken Dous’s oath to answers to interrogatories filed in a companion case showing that Dous’s family consisted of his
The company could investigate the claim and determine whether it came within the contract of insurance. If satisfied that the accident was not within the coverage, it could disclaim liability and withdraw from the case. Phillips v. Stone, 297 Mass. 341. Restighini v. Hanagan, ante, 151. The company, however, could not, after having acquired information sufficient to warrant a disclaimer, continue in defence of the action and, upon the rendition of an adverse verdict, then for the first time rely upon such information and withdraw. It was bound to exercise good faith and due diligence.
The judge made voluntary findings of fact which contain nothing to indicate that they comprise all the material facts. See Birnbaum v. Pamoukis, 301 Mass. 559. These findings must be accepted as true as they are not shown to be plainly wrong. Berman v. Coakley, 257 Mass. 159. Johnson v. O’Lalor, 279 Mass. 10. There is no express finding that the company is estopped, but the findings in so far as they go support such a conclusion. The judge
There is nothing in the contention that, the first count of the declaration being based on negligence, the cause of action was within the terms of the policy and prevented the company from withdrawing until after the verdict. It is true that whether an action is within the terms of a liability policy is, in the first instance, to be determined by the declaration, Fessenden School, Inc. v. American Mutual Liability Ins. Co. 289 Mass. 124; Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445, but it is also true that the present contention of the company would apply equally to both counts, which in reality were different descriptions of the same cause of action. Neither count was shown to have charged intentional or wilful conduct.
The company took various exceptions to the introduction of evidence. The assessors’ list of polls and various other papers shown to the company’s attorney were introduced and received for the limited purpose of showing the information concerning the residence of Dous possessed by the company prior to the trial. They were admissible on the ground of notice. Roberts v. Spencer, 123 Mass. 397. Commonwealth v. Britland, 300 Mass. 492. 3 Wigmore, Evidence, §§ 1788, 1789.
The company excepted to the introduction of a letter written to it by the trial attorney before the trial expressing his opinion as to the legality of the registration of the automobile of Dous. The principle is settled that a letter from an attorney to his client relative to a matter in which he is acting as counsel cannot be disclosed by the attorney without the consent of the client. Foster v. Hall, 12 Pick. 89. Rooney v. Maryland Casualty Co. 184 Mass. 26. At the time the letter was written the attorney, who had been selected by the company, had filed an appearance for Dous in the actions brought against him and had conferred with him concerning this litigation. He was acting for both Dous and the company and the subject matter of the communication in question was concerned with a material issue in the pending actions. Such a communication was not privileged against Dous or against the plaintiff, who by virtue of the statutes of Maine and of this Commonwealth (see Rev. Sts. of Maine [1930] c. 60, § 177; G. L. [Ter. Ed.] c. 175, § 113) stood in the place of Dous as against the company to the amount of her claim. We see no error in the admission of this evidence. Thompson v. Cashman, 181 Mass. 36. Vrusho v. Vrusho, 258 Mass. 185. Beacon Oil Co. v. Perelis, 263 Mass. 288.
The exclusion of the charge to the jury at the trial of the action of tort was free from error. The specific counts on which the verdict was based have no bearing upon the issue of estoppel. The exclusion of the records of a finance company as to the residence of Dous or the place from
The decree must be affirmed with costs.
Ordered accordingly.
