299 Mass. 244 | Mass. | 1938
This is a suit in equity under G. L. (Ter. Ed.) c. 175, §§ 112, 113, and c. 214, § 3 (10), to enforce the liability of the deféndant under a policy issued by it pursuant to the compulsory motor vehicle insurance law. G. L. (Ter. Ed.), c. 90, §§ 34A-34J. The trial judge made findings and rulings, and ordered a decree to be entered dismissing the bill. The allegations of the bill admitted by the answer are that the plaintiff is the administratrix of one Plasse, who was fatally injured on September 29, 1932, while walking on a public highway in Webster, by a motor vehicle owned by one Essex and driven by one Rea. The motor vehicle was insured under the compulsory motor vehicle insurance law by a policy issued by the defendant. Later, the plaintiff brought an action against said Rea and recovered a judgment for a substantial amount for the death and conscious suffering of her intestate, which had not been paid in whole or in part after thirty days and before the present suit.
The trial judge found these facts: On the evening of the
The findings of fact, being founded upon oral testimony, must be accepted as .true since they are supported by the evidence. It has been assumed that the plaintiff must recover, if at all, under the part of G. L. (Ter. Ed.) c, 90,
' The case at bar is governed by Moschella v. Kilderry, 290 Mass. 62. To the same general effect is Johnson v. O’Lalor, 279 Mass. 10, which affords no support to the plaintiff. See, also, Dickinson v. Great American Indemnity Co. 296 Mass. 368, and Gearin v. Walsh, ante, 145. There was no such authority over the automobile given by Essex to Loughlin as was found to have been given by the owner in Boyer v. Massachusetts Bonding & Ins. Co. 277 Mass. 359, 361. Cases like Blair v. Travelers Ins. Co. 288 Mass. 285, S. C. 291 Mass. 432, O’Roak v. Lloyds Casualty Co. 285 Mass. 532, 538, Bresnahan v. Lumbermens Mutual Casualty Co. 297 Mass. 555, and Novo v. Employers’ Liability Assurance Corp. Ltd. 295 Mass. 232, afford no support to the essential contention of the plaintiff. No error is disclosed on the record.
Decree affirmed.