321 Mass. 200 | Mass. | 1947
Following the decision in Sheehan v. Gorian-sky, 317 Mass. 10, which was an action of tort to recover for the death of the plaintiff’s intestate occasioned by the operation of an automobile by Goriansky, the plaintiff obtained a judgment, which is unsatisfied. He now brings this bill in equity against Goriansky and the Liberty Mutual Insurance Company to reach and apply the obligation of the insurance company under a policy of motor vehicle liability insurance issued to Goriansky’s wife, Carola E. Goriansky, the owner with whose permission Goriansky was operating the automobile on the fatal occasion. See G. L. (Ter. Ed.) c. 175, § 113, and c. 214, § 3 (10). The judge filed “findings and order for decree.” He found that the judgment was covered by the policy, and that Gori-ansky was impecunious and could not pay it. From a decree ordering the insurance company to pay the judgment and dismissing the bill without prejudice as to Gorian-sky, the insurance company appealed. The evidence is reported.
The question for our determination is whether the judge was plainly wrong in finding that the judgment is a liability imposed for a death “caused by accident” within the terms of the policy, the material portions of which are: “Coverage B Bodily injury liability — (This coverage is optional). To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages . . . because of bodily injury, including death at any time resulting therefrom, sustained by any person or persons in . . . the divisions hereinafter defined . . . caused by accident and arising out of the ownership, maintenance or use of the motor vehicle. Definition of divisions. Division 1. Guest occupant upon the ways of Massachusetts. A person who is a guest occupant of the motor vehicle while upon the ways of the Commonwealth of Massachusetts. Division 2.
The judgment was upon a verdict for the plaintiff upon a count "based on wilful, wanton, and reckless operation of the automobile.”
Inasmuch as the obligation, if any, which the plaintiff seeks to reach, arose under the guest occupant provision, any defence, which would be available to the company against Goriansky is available against the plaintiff. Sanborn v. Brunette, 315 Mass. 231, 232. Salonen v. Paanenen, 320 Mass. 568, 575. The verdict and -judgment were presumably based upon the declaration, at least in the absence of evidence to the contrary. Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445, 447. Klefbeck v. Dous, 302 Mass. 383, 388. The plaintiff and the company were bound by the material facts which were tried and settled in the action against Goriansky. Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445, 448-449. Levinton v. Poorvu, 293 Mass. 338, 341. Muise v. Century Indemnity Co. 319 Mass. 172, 174. They were thus bound by a determination that Goriansky’s liability was based upon at least one of three possible grounds, namely, wilful conduct, wanton conduct, reckless conduct.
Wilful conduct injuring a guest occupant is not within the coverage of the policy.
It does not follow, however, that conduct which is merely wanton or reckless resulting in injury to a guest occupant is outside the coverage of the policy. We realize that in criminal prosecutions and cases relating to personal injuries this court has stated that wanton or reckless conduct “is the legal equivalent of intentional conduct.” Commonwealth v. Welansky, 316 Mass. 383, 401, and cases cited. Thus, in Banks v. Braman, 188 Mass. 367, 369, it was said that where there is wanton or reckless conduct “there is wilful, intentional conduct whose tendency to injure is known, or ought to be known, accompanied by a wanton and reckless disregard of the probable harmful consequences from which others are likely to suffer, so that the whole conduct together, is of the nature of a wilful, intentional wrong.” And in the Welansky case, we said, “The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another” (page 399). See Restatement: Torts, § 500. See also Scaia’s Case, 320 Mass. 432, 433-434.
But wanton or reckless conduct, while the legal equiv-aient of intentional conduct, is substantially different. Commonwealth v. Welansky, 316 Mass. 383, 398. “Reckless misconduct differs from intentional wrongdoing in a very important particular. While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it. It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from the substantial certainty without which he cannot be said to intend the harm in which his act results.” Restatement: Torts, § 500, comment f.
The verdict and the judgment could have been based upon any one or more of three grounds of liability, and one of them was not covered by the policy. Since the precise ground of liability was not determined in the action at law, the parties were entitled to litigate that ground in this suit in order to determine whether the death was within the coverage. Lunt v. Aetna Life Ins. Co. 261 Mass. 469, 474. Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445, 449. Sciaraffa v. Debler, 304 Mass. 240, 242. Joyce
The judge found that the judgment was covered by the policy. He thus found by implication that the ground of liability was not wilful conduct, but was no more than wanton conduct or reckless conduct. This finding was not plainly wrong. Goriansky testified that he did not intend to kill the plaintiff’s intestate. The record at the earlier trial was admitted in evidence without objection. It was in evidence for all purposes of the case. Pochi v. Brett, 319 Mass. 197, 203, and cases cited. See Wigmore on Evidence (3d ed.) § 1668. Contrary to the company’s contention the judge was not required to conclude that the jury found that Goriansky acted “with the intention of brushing him [the plaintiff’s intestate]] off the running board.” It rightly could have been found that Goriansky did not intend to run into the pole or any other object. From the testimony of Goriansky and the evidence in the record, much of which appears in the earlier opinion, 317 Mass. 10, the judge could properly reach the conclusion which he did.
Decree affirmed with costs.
Count 2 of the declaration alleged, in part, “that on or about August 24, 1940, said John F. Sheehan was a passenger in an automobile operated by the defendant on a public way known as Route 117, in North Sudbury, Massachusetts; that the defendant so wilfully, wantonly, and recklessly operated said automobile as to cause the same to collide with a telegraph pole on or near said public way, whereby the said John F. Sheehan sustained serious personal injuries which caused his death on or about August 24, 1940.”
It has been held otherwise as to an injury within the compulsory motor vehicle insurance law, G. L. (Ter. Ed.) c. 90, § 34A. See Wheeler v. O’Connell, 297 Mass. 549. Compare Huntington Cab Co. v. American Fidelity & Casualty Co. Inc. 155 Fed. (2d) 117 (C. C. A. 4), reversing 63 Fed. Sup. 939 (D. C. S. D. W. Va.).