292 Mass. 239 | Mass. | 1935
This is a suit in equity under G. L. (Ter. Ed.) c. 175, §§ 112, 113; c. 214, § 3 (10), to reach and apply toward the satisfaction of a judgment recovered by the plaintiff the proceeds of a policy issued by the defendant insurance company (hereafter called the insurer) pursuant to the compulsory motor vehicle insurance statute. G. L. (Ter. Ed.) c. 90, §§ 34A-34J. The trial judge made findings and rulings and ordered the entry of a decree dismissing the bill. Final decree was entered accordingly. The plaintiff appealed. The evidence is reported.
The facts found are in substance these: The plaintiff recovered judgment against Louise DeVellis (hereafter called the defendant) in an action for compensation for personal injuries sustained by reason of being struck by an automobile. That judgment has not been satisfied and more than thirty days had elapsed since its entry before the bringing of the present suit. G. L. (Ter. Ed.) c. 214, § 3 (10). The automobile concerned in the accident, on account of which the judgment was recovered by the plaintiff, was registered in the name of the defendant upon an application in her name. The registration number was 630791. The real owner of the automobile and the real applicant for insurance was Thomas S. DeVellis, otherwise called Salvatore DeVellis, who applied for insurance under the name and description “Louis D. DeVellis, 131 Winsor Street, Watertown, Counter man.” The insurer executed a certificate stating that it had issued to Louis D. DeVellis, “the motor vehicle registrant, hereinbefore indicated,” a motor vehicle liability policy covering the automobile. That certificate was in the form prescribed by the registrar of motor vehicles and was attached to the application for registration of the automobile, all as issued by the registrar of motor vehicles. Further findings are that that “certificate now bears the name of Louise D. DeVellis, the terminal letter 'e’ of the name 'Louise' being in pencil, all other
These findings are amply supported by the testimony and must be accepted as true. There was evidence tending to show that the certificate of insurance was executed in triplicate, the original and two copies, all being attached to the same printed form of application for motor vehicle registration. The second or ''duplicate” copy was detached by the insurer and retained by it. The original and the first copy, still attached to the printed form, were later presented to the registry of motor vehicles. At that time the application was signed “Louise DeVellis.” On receipt of the application at the registry, the insurance certificate and the first copy were stamped with the number 630791 and registration plates of that number were delivered to the applicant. The first copy, known as the “record” copy, of the insurance certificate was then returned to the insurer. At some subsequent time, the letter “e” in penciled handwriting was added to the typewritten name “Louis” on the original certificate in the registry of motor vehicles. Neither the “duplicate” nor the “record” copy of that certificate shows any such alteration of Louis to Louise, but remained Louis.
The question is whether under the governing statutory provisions the insurer in this suit may deny that it issued an insurance policy to the defendant, whose name was signed to the application for registration and whose name in the manner above described appeared at the time of the trial on the insurance certificate on file in the registry of motor vehicles.
The following are the pertinent provisions of G. L. (Ter. Ed.) c. 90: § 1A. “No motor vehicle . . . shall be regis
The plaintiff contends that Louise DeVellis is the name of the applicant for registration as written on the application, and that therefore the insurer is estopped to deny that it issued a policy protecting her from liability on the automobile in question. The insurer contends that it issued a certificate to Louis D. DeVellis, that that fact was clearly stated in its certificate, and that its present defence is not inconsistent with or in denial of anything set forth in the certificate. The relevant statutes were enacted in order to make provision for security in the collection of compensation for damages sustained without fault by travellers on the highway through the negligent operation of motor vehicles by others. O’Roak v. Lloyds Casualty Co. 285 Mass. 532, 535. The statutes, however, do not purport to make available to a judgment creditor the proceeds of a liability policy unless the judgment debtor falls within the definition of one assured under the terms of the policy. It is not within the contemplation of the statute that every person injured by the operation of the motor vehicle in all circumstances and by any person shall be entitled to the benefit of the insurance policy. A motor vehicle liability policy must provide “indemnity for or protection to the insured and any person responsible for the operation of the insured’s motor vehicle with his express or implied consent against loss . § 34A. That is the extent of the compulsory requirement. Although the policy issued in bhe case at bar was not introduced in evidence, it must be presumed to conform to the mandates of. the statute. MacBey v. Hartford Accident & Indemnity Co. ante, 105, 106-107.
It is to be observed that, if the papers produced at the trial be accepted at their face value, there is an important discrepancy. The name on the application was “Louise DeVellis.” The name of the assured stated in the certificate, assuming as part of that name the final “e” added in pencil manuscript to the otherwise typewritten given name “Louis,” was “Louise D. DeVellis.” That was not the name of the applicant, because it contained a middle initial. “The middle name or initial is a part of the name of a person.” Putnam v. Bessom, 291 Mass. 217, 219, and cases there collected. The applicant and the person assured, according to that certificate, appear not to be the same person.
The plaintiff does not contend that Louise DeVellis is an assured under a policy issued to Louis D. DeVellis, or Thomas S. DeVellis. See Blair v. Travelers Ins. Co. 291 Mass. 432. She asserts that Louise DeVellis was insured directly. The findings and the evidence do not support that conclusion. The insurance certificate at the time of its execution and filing with the registrar of motor vehicles bore in typewriting “Louis D. DeVellis” as the name of the “Motor Vehicle registrant, hereinbefore indicated”; it described his “Occupation” as “Counterman.” Plainly, the only person indicated in the certificate of insurance as being insured was Louis D. DeVellis, not Louise De-Vellis. In form and words the “Certificate of Insurance” •is a separate instrument, “to be filled out by Insurance Company” according to the words printed thereon. In the process of registration the “record” and “duplicate”
The plaintiff is not aided by the provisions of G. L. (Ter. Ed.) c. 175, § 113A (5), to the effect that “no statement made by the insured or on his behalf, either in securing the policy or in securing registration of the motor vehicle . . . covered thereby . . . 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” in a proceeding like the present. That statutory regulation as to the force and effect of a motor vehicle insurance policy is important, is onerous on the insurer, and is given full effect in cases coming within its terms. Caccavo v. Kearney, 286 Mass. 480. The present defendant is not seeking to avoid its policy. It relies upon
Decree affirmed.