242 Mass. 367 | Mass. | 1922
This is a suit in equity in which Drew C. Canfield McMahon seeks to reach and apply under G. L. c. 175, §§ 112,113, money provided for in a contract of insurance between the defendants Hannah Pearlman and the Great Eastern Casualty Company. The contract was for the term of one year from June 2, 1919, and by it the company agreed to indemnify Pearl-man against loss from the liability imposed by law upon her on account of bodily injuries and resultant death accidentally suffered as a result of the ownership, maintenance, or use of her-automobile. The policy expressly exempted the insurer from liability for injury or death suffered by the insured or her employees caused by her automobile while operated by any person in violation of law as to age, and, if there was no legal age limit, by any one under the age of sixteen, or while engaged in any race or competitive speed test.
It is conceded that an accident happened within the terms of the policy, that final judgment based on bodily injury has been recovered by the plaintiff against the insured, and that the requirements of the policy and the statute under which the suit has been brought have been fulfilled.
The injury was caused by the act of Mrs. Pearlman while she was personally operating her duly registered automobile. She had, however, no license to operate a motor vehicle and was unaccompanied by any licensed operator; her only license had expired in the February prior to the issuance of the policy, but she believed it to be in force.
The Great Eastern Casualty Company contends that the plaintiff does not have as against it any greater right than Pearlman would have had, and that the latter could not have recovered upon the contract of insurance because at the time of the accident she was engaged in a criminal act. While the casualty company does not urge that the unlawful conduct is forbidden in express
It is assumed that the insurer cannot be held unless the insured could have maintained an action under the policy. Lorando v. Gethro, 228 Mass. 181.
The fact that Mrs. Pearlman operated her motor vehicle without a license and that this act was a crime (G. L. c. 90, §§ 10, 20) did not render her a trespasser on the highway. In the trial of an action for damages to the vehicle, her wrongful act would have been evidence of negligence, but would not as a matter of law have barred a recovery. In the plaintiff’s suit against her, it was admissible as evidence of her negligence, but it did not establish liability as a legal result. Bourne v. Whitman, 209 Mass. 155. Holden v. McGillicuddy, 215 Mass. 563. Walters v. Davis, 237 Mass. 206. As was said in Bourne v. Whitman, at page 169, “The fact that the number of punishable misdemeanors has multiplied many times in recent years, as the relations of men in business and society have grown complex with the increase of population, is a reason why the violation of a criminal statute of slight importance should not affect one’s civil rights, except when this violation, viewed in reference to the element of criminality intended to be punished, has had a direct effect upon his cause of action. Our decisions seem to have been tending toward the adoption of such a rule.”
We are of opinion that it ought not to be held that a person who is guilty of the now considered violation of the statute is forbidden because of public policy to recover under an insurance contract indemnifying against accident. So to hold would tend to defeat the object of such insurance and would not tend to increase the welfare of the public. The unlawful act of Pearlman did not constitute a defence unless it was a direct and proximate cause contributing to the injury.
In this Commonwealth, corporations may be organized “to insure against loss or damage to and loss of use of motor vehicles, their fittings and contents, whether such vehicles are being operated or not, and wherever the same may be ... ; and against loss or damage caused by . . . automobiles ... to the property of another, for which loss or damage any person is liable.” G. L. c. 175, § 47, cl. 2.
The case is within the authority of Todd v. Traders & Mechanics Ins. Co. 230 Mass. 595. To the same effect is Messersmith v. American Fidelity Co. supra. See also Cluff v. Mutual Benefit Life Ins. Co. 13 Allen, 308; 17 A. L. R. 1005 n. It is not governed by Kelly v. Home Ins. Co. 97 Mass. 288, Johnson v. Union Marine & Fire Ins. Co. 127 Mass. 555, and Lawrence v. National Fire Ins. Co. 127 Mass. 557, where the object of the insured in obtaining the policies was to protect and encourage an illegal business.
Inasmuch as the unintentional failure of the defendant Pearl-man to have a license to operate her automobile does not as a matter of law bar the plaintiff’s recovery, a decree is to be entered for the plaintiff in accordance with the order of the single justice for $4,913.98 damages and $69.99 costs, the amount of the judgment recovered by him against the defendant Pearlman, and interest thereon from the date of judgment, and costs of this suit.
So ordered.
