317 Mass. 517 | Mass. | 1945
These bills in equity by the holders of judgments in tort against the defendant Bernardi, one for personal injuries and the other for damage to an automobile, seek to reach and apply the obligation of the defendant Liberty Mutual Insurance Company under a policy of automobile liability insurance issued to the defendant Valianti, who, it is alleged, permitted the defendant Bernardi to use his automobile. See G. L. (Ter. Ed.) c. 175, § 113, and c. 214, § 3 (10). There were decrees dismissing the bills of complaint, and the plaintiffs appealed. There were no statements of findings of fact, voluntary or otherwise. The cases are here with a report of the testimony.
It is our duty to examine the evidence and reach our own conclusions. We accept findings of the trial judge where credibility of oral testimony is involved unless the findings are plainly wrong, but where there is an ultimate finding resting upon facts admitted or found, we draw our own inferences whatever may have been those of the trial judge. Lowell Bar Association v. Loeb, 315 Mass. 176, 178. Malone v. Walsh, 315 Mass. 484, 490. New England Trust Co. v. Commissioner of Corporations & Taxation, 315 Mass. 639, 643-644.
The policy of insurance, among other things, contained a promise to pay “on behalf of the insured” sums he should become obliged to pay by reason of liability for bodily injuries to persons “off the ways of the Commonwealth” (“Coverage B”) and for property damage (“Coverage C”). The policy also provided, “The unqualified word ‘insured’ wherever used in coverages B and C . . . includes not only the named insured but also any person while using the motor vehicle . . . provided . . . the actual use is with permission of the named insured.”
In his answers Valianti admitted allegations in the bills
The decrees dismissing the bills of complaint were rightly entered on the evidence. Even if we assume in the plaintiffs’ favor that the permission was for use of the automobile anywhere until 3 p.m. and was not merely for a trip to Lowell, such permission did not embrace an authorization to do what actually was done. A practice drive by an unlicensed novice as the operator, even though Bernardi- was present, was not a “use” of the automobile by Bernard! “with permission of the named insured” within the terms of the policy. Blair v. Travelers Ins. Co. 291 Mass. 432, 436. See Woznicki v. Travelers Ins. Co. 299 Mass. 244.
n - .., . Decrees affirmed with costs.