Williams v. Nelson , 228 Mass. 191 ( 1917 )

Rugg, C. J.

These are suits in equity under St. 1914, c. 464. That act in terms permits a judgment creditor of one insured by contract of casualty insurance against loss or damage on account of bodily injury or death by accident of any person arising from •causes for which the insured is responsible, such judgment having been recovered for a cause covered by the contract of insurance, to proceed in equity against the insured and the insurer to reach and apply the insurance money to the satisfaction of the judgment.

I. The statute has been assailed as contrary to the Constitution. But that contention has been held untenable in Lorando v. Gethro, ante, 181, just decided, and need not be discussed further. This case upon that point is governed by the authority of that decision.

2. The Superior Court has jurisdiction of the suits. That court has general chancery jurisdiction. It has jurisdiction by the express terms of R. L. c. 159, § 3, of special equitable suits by creditors to reach and apply property of a debtor which cannot be reached to be attached or taken on execution in actions at law. Creditors’ bills brought by those who have obtained judgments to enforce their collection is a well recognized branch of equity. Rioux v. Cronin, 222 Mass. 131, 137. Suits under the present statute are sufficiently similar to these two classes of cases, of which the Superior Court plainly has jurisdiction, to be also within its jurisdiction. When an existing method of relief in equity already within the jurisdiction of the Superior Court is enlarged or modified, without creating a new branch of equity, it is cognizable still by that court. The instant statute is a simple amplification of relief under the well known equitable process of creditor’s bill or equitable attachment.

The exclusive jurisdiction in equity conferred upon the Supreme Judicial Court by R. L. c. 159, § 2, is confined to matters not within the general principles of chancery jurisprudence cognizable under statutes which do not expressly provide that the Superior Court also shall have jurisdiction. It does not govern the present proceedings. Cases like Baldwin v. Wilbraham, 140 Mass. 459, and Langmaid v. Reed, 159 Mass. 409, which related to newly created special statutory subjects of equity not known to general chancery jurisprudence, are not relevant.

3. The policy by which the judgment debtor was insured con-, tained this clause: “B. This policy does not cover loss from liability for, or any suit based on, injuries or death caused by any automobile (1) while driven or manipulated by any person under the age fixed by law or under the age of sixteen years in any event. . . .” The judgments here in question were recovered for injuries caused to the female plaintiff by being hit by an automobile of the insured. The finding'of the judge in this respect is that, although before the accident which caused the injuries to the female plaintiff, hereafter called the plaintiff, a son of the principal defendant under sixteen years of age had been driving the automobile, yet just before the automobile struck the plaintiff, the father “suddenly leaned over to the left and took the wheel from his son, telling him to get out of the way.” Apparently at this moment the automobile was thought by the father to be in a position of some danger either as being on the wrong side of the road or as likely to be driven off the road. The further finding is that “The son shrunk back in the seat, and the father thereafter guided the course of the automobile and entirely controlled its operation so far as possible so to do in the position in which he was, and the son thereafter did nothing except to blow the horn. The automobile crossed both street railway tracks, passed in front of the street car, and then, turning to the right, proceeded between the street car and the sidewalk and hit Rose Williams who was on the street for the purpose of taking the street car. The operation of the car was entirely controlled by the father while crossing both street railway tracks, while passing in front of the street car and turning to the right on Massachusetts Avenue, and while proceeding on Massachusetts Avenue for a distance of at least the length of the street car, but Nelson was not in a position in the automobile at the time of the accident 'so that he could properly drive or manipulate the automobile,’ and he was not in a position in which he could readily prevent the accident by applying the levers or pedals provided for stopping the automobile.”

This finding of fact is amply supported by evidence, which need not be reviewed. It must be accepted as true. As matter of law it supports recovery under the policy. The dominating mind in control of the operation of the automobile and regulating its movement at the moment of impact with the plaintiff, was that of the father and not of the son. Although the distance travelled after the father took manual guidance of the automobile was comparatively short, perhaps not more than fifty or seventy-five feet, and the conditions of his driving were unfavorable to complete and skilful direction of its course, yet his initial choice was to drive on rather than to stop or pursue some other line of action. That the son blew the horn and had brought the machine into an improper position does not derogate from the paramount control of the father over it, nor prevent him from being, at the time of the injury to the plaintiff, the one by whom it was “driven or manipulated,” within the meaning of those words in the policy.

The finding that the father’s position was such that he could not readily prevent the accident by stopping the car is not decisive. That is not equivalent to a finding that it was impossible in reason for him to have stopped the car after he assumed control of its movements and before the plaintiff was injured. Moreover, the fundamental fact is that he was driving and that he elected to drive under the conditions which confronted him.

4. The language of the statute renders it applicable to every contract of insurance whereby one “is insured against loss or damage on account of the bodily injury or death by accident of any person.” The words “loss or damage,” in this connection in the light of their context, and the manifest purpose of the statute, include a case like the present where the insured has been held responsible to the extent of the rendition of a judgment against him, although no payment has been made on the judgment.

5. The husband of the female plaintiff recovered judgment against the insured for the loss or damages sustained by him because of the physical injury to his wife. The question is whether this judgment is for the “bodily injury ... of any person.” Bodily injury imports harm arising from corporeal contact. In this connection “bodily” refers to an organism of flesh and blood. It is not satisfied by .anything short of physical, and is confined to that kind of injury. It does not include damage to the financial resources of the husband arising from a bodily injury to his wife. Hey v. Prime, 197 Mass. 474, and cases cited. Keating v. Boston Elevated Railway, 209 Mass. 278, 282. Personal injury in other connections has been held to be of more comprehensive significance. Mulvey v. Boston, 197 Mass. 178, 180. Madden’s Case, 222 Mass. 487, 492. But "bodily injury ... of any person” cannot reasonably be held to include the kind of loss suffered by the husband.

It follows from what has been said that in the suit by the wife the entry must be decree affirmed with costs, and in that by the husband the decree must be reversed, and in accordance with St. 1913, c. 716, § 2, a new decree entered dismissing his bill with costs.

So ordered.