322 Mass. 14 | Mass. | 1947
This is a bill in equity to reach and apply, in satisfaction of a judgment against the defendant administrator of the estate of Percy A. Bousquet, an alleged obligation of the defendant Massachusetts Bonding and Insurance Company under a policy of automobile liability insurance. See G. L. (Ter. Ed.) c. 175, § 113, and c. 214, § 3 (10). The case comes before us on the appeal of the plaintiff from a decree entered by the judge dismissing the bill as to the defendant Catherine L. Bousquet and the defendant insurance company, and adjudging that the defendant administrator of the estate of Percy A. Bousquet is indebted to the plaintiff in the sum of $2,923.87 with interest thereon, malting.a total sum of $3,080.16.
The evidence is reportéd and the judge filed a document entitled “The Material Facts,” containing certain findings of fact, a ruling and an order for decree. Material facts disclosed by the evidence follow. The policy of compulsory motor vehicle liability insurance in question was issued to the defendant Catherine L. Bousquet by the defendant insurance company, hereinafter called the insurer, in 1942. It contained no guest coverage. It was in effect on December 22, 1942. On that date, while Percy A. Bousquet (hereinafter referred to as Bousquet) with the permission of the insured was operating the motor vehicle described in the policy, it became involved in an accident. The plaintiff was riding in the automobile at the time and as a result was injured. Bousquet was also injured and died as a result. The defendant Simoneau was appointed administrator of his estate. Thereafter the plaintiff brought an action of tort against the administrator. The writ was returnable to the Superior Court on December 6, 1943. On November 10, 1944, the defendant administrator, hereinafter de
Facts found by the judge, so far as appears voluntarily, are these: “On the date of the accident she [the plaintiff] was in the general employ of one Justo who ran a café [in Hudson] across the street from the one run by Percy [Bous-quet]. Plaintiff asked Justo if she could get through early stating that she wanted to go to Clinton with Percy. She left early, went across the street to Percy’s café, claimed that she worked two hours for Percy on his promise to pay her $5 and drive her to her home in Marlborough. Plaintiff testified that Percy further said ‘I’ve got a few calls to make in Clinton and I’ll drive you home if you’ll go with me.’ The distance from Hudson to Marlborough is four
During the course of the hearing of the present suit the plaintiff excepted to the exclusion of a transcript of the evidence taken during the trial of the action of tort and of the judge’s charge to the jury,
The plaintiff’s contentions, among others, are “1. That the verdict and judgment in favor of the plaintiff was [sic] res judicata as to the defendant Massachusetts Bonding and Insurance Company, that the plaintiff was at the time of
In support of the position taken by the insurer it is argued that, since the plaintiff’s declaration in the action of tort did not contain any allegation of employer-employee relation between the plaintiff and Bousquet at the time of the accident, it was entitled to assume that the relationship of the plaintiff to Bousquet was not that of a business invitee but was that of a mere guest, and that, because the policy of insurance contained no guest coverage, the failure of the insurer to appear and defend the action did not bar it from seeking to establish in the present suit that the relationship of the plaintiff to Bousquet was merely that of a guest. We do not concur in that reasoning. The allegations of the several counts of the plaintiff’s declaration in the action at law were that the plaintiff was a passenger in the automobile at the time of the accident by the express invitation of Bousquet, that is, as an invitee. And the word “invitee” has not infrequently been used to distinguish a business invitee from a mere guest. Epstein v. Simco Trading Co. Inc. 297 Mass. 282, 284, and cases cited. The allegations of the plaintiff’s declaration in question did not|justify the insurer in assuming that proof that the status ‘of the plaintiff was that of a business invitee was precluded. In our opinion the declaration was sufficient to raise the issue as to the status of the plaintiff as an occupant of the vehicle in question at the time of the accident.
The question remains whether in the action at law the status of the plaintiff with relation to Bousquet was finally adjudicated to be that of a business invitee and not a mere guest, with binding effect on the insurer. That involves the
The jury must be presumed to have followed the instructions of the judge, and so it is manifest that the verdict of the jury was of necessity based on the grounds that the plaintiff was riding in the vehicle with Bousquet under the terms of her employment by him, that there was no such deviation in the course of the journey to her home as to take it out of the contract of employment, that Bousquet was negligent, and that the injuries sustained by the plaintiff were caused by his negligence. It is settled, where the original action is ostensibly within the terms of the policy, that, whether the insurer assumes the defence or refuses so to do without legal justification, the insurer and the plaintiff are bound by the result of that action as to all matters decided therein material to recovery by the plaintiff. Sheehan v. Goriansky, 321 Mass. 200. Muise v. Century Indemnity Co. 319 Mass. 172, 174. Sweeney v. Frew, 318 Mass. 595. Sciaraffa v. Debler, 304 Mass. 240, 242. Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445, 448. See also Browne v. Moran, 300 Mass. 107, 110-111; McCarthy v. William H. Wood Lumber Co. 219 Mass. 566, 567; Foye v. Patch, 132 Mass. 105, 110; Restatement: Judgments, § 68, comment c. It is likewise settled that, in order to determine what was in fact decided at the trial of the action of tort, extrinsic evidence is admissible. Waterhouse v. Levine, 182 Mass. 407, 409. Cote v. New England Navigation Co. 213 Mass. 177, 181-182. Boston & Maine Railroad v. T. Stuart & Son Co. 236 Mass. 98, 102. Mezoff v. United Kosher Butchers Association, Inc. 274 Mass. 174, 175. See
The decree entered by the judge is reversed, and instead thereof a final decree is to be entered enforcing the obligation of the insurer under the policy of- insurance in question to the satisfaction of the judgment obtained by the plaintiff in the action of tort, and ordering the payment by the insurer to the plaintiff of the amount due her, with interest and costs of this appeal.
So ordered.
The second, third and fourth counts of the declaration were waived at the trial,
This transcript, certified by the court stenographer, was marked for identification and was before this court at the argument of the present case. — Reporter.