Masterson v. American Employers' Insurance , 288 Mass. 518 ( 1934 )

Rugg, C.J.

These are suits in equity brought under G. L. (Ter. Ed.) c. 175, §§ 112, 113, and c. 214, § 3 (10), to reach and apply, to the satisfaction of judgments obtained by the several plaintiffs against one James T. Masterson for damages for personal injuries sustained by each, through negligence in the operation of an automobile owned by him, amounts due under a motor vehicle liability insurance policy issued by the defendant. The trial judge found that the plaintiffs were injured in an accident while travelling in Virginia in an automobile owned by Masterson and operated by his sister. Masterson knew of the accident shortly after it occurred. Actions to recover compensation for damages sustained by the several plaintiffs in that accident were brought against Masterson in this Commonwealth, and when reached for trial defaults were entered and damages assessed. Masterson and the plaintiffs were residents of Hull in this Commonwealth. The automobile of Masterson was insured under a policy issued by the defendant which by Part I was in conformity to the compulsory motor vehicle liability insurance law and by Part II contained provisions for extraterritorial liability coverage. As insurer the defendant notified Masterson that it would not defend the actions brought against him. The reason for its refusal was that Masterson had failed to comply with “Notice. B.” under “General Conditions” in the policy. That clause, so far as material, is as follows: “Upon the occurrence of death or personal injuries or any accident covered by this Policy, the Assured shall, as soon as practicable after learning thereof, give written notice with full particulars to the Corporation or its duly authorized Agent. ...” The trial judge found, notwithstanding the testimony of Masterson to the contrary, that neither the defendant insurance company nor any agent of it ever received from him a notice of the accident and that no notice in writing was given by mail or otherwise by Master-son to the insurer or its agent.

The testimony upon which this finding is based is reported in full. In these circumstances upon an appeal it is the duty of this court to examine the testimony and draw its own conclusion as to the facts, giving due weight to the findings of the judge. Where the testimony is oral the findings will not be reversed unless plainly wrong. Lindsey v. Bird, 193 Mass. 200. New England Wood Heel Co. v. Nolan, 268 Mass. 191. Rodrigues v. Rodrigues, 286 Mass. 77. The evidence in the case at bar has been examined with care. We are of opinion that the finding of the trial judge that no notice in writing was given to the insurer cannot be pronounced plainly wrong and was warranted.

The plaintiffs further contend that they are nevertheless entitled to recover under Part I, Statutory Coverage, Statutory Conditions, VI. — Statutory Provisions, (3), of the policy in these words: “. . . no act or default of the Assured, either prior or subsequent to the issuance of this Policy, shall operate to defeat or avoid this Policy so as to bar recovery within the limit provided in this Policy by a judgment creditor proceeding under the provisions of Section 113 of Chapter 175 and Clause 10 of Section 3 of Chapter 214 of the General Laws.” The arrangement of the policy clearly indicates that this clause applies only to the compulsory motor vehicle insurance required by the statutes of this Commonwealth. The policy is divided into three parts. Part I is entitled “Statutory Coverage”; it provides such compulsory insurance and relates to damages occurring on the ways of this Commonwealth. Part II is entitled “Extra Territorial Liability Coverage”; it provides insurance against damages occurring within the United States of America and Canada otherwise than upon the ways of this Commonwealth. It is plain that the plaintiffs can recover only under Part II for the reason that the accident occurred outside this Commonwealth and within the United States of America. Therefore “Notice. B.” of the General Conditions applies to the extraterritorial insurance. Failure to give the required notice bars recovery. The case is governed in point of authority by Sheldon v. Bennett, 282 Mass. 240, 246. Cogliano v. Ferguson, 245 Mass. 364. Wainer v. Weiner, ante, 250.

In each case the entry may be

Decree affirmed with costs.