Caccavo Et Al. v. Kearney Et Al‪.‬

RUGG, Chief Justice. The plaintiff seeks by this suit to reach and apply the avails of an insurance policy issued by the defendant, the Employers Liability Assurance Corporation, Ltd. (hereafter called the insurer), to the satisfaction of judgments in actions at law obtained by the plaintiff against the other two defendants for negligently causing the death of the plaintiffs intestate. In March, 1930, the plaintiffs intestate, upon a public way within the Commonwealth, received fatal injuries as the result of the operation of a motor vehicle registered as hereafter described in the name of the defendant Eleanor M. Kearney and operated with her knowledge and consent by the defendant Mildred E. Kearney. At the trial of the actions, in which judgments against the Kearneys were recovered, the jury were instructed that the motor vehicle in question could be found to be a trespasser upon the highway and that the defendant Eleanor M. Kearney could be found legally responsible for the operation of the motor vehicle by the defendant Mildred E. Kearney Under St. 1928, c. 317, § 1. The insurer refused to pay the judgments. The case was submitted upon an agreed statement of facts. A decree was entered in favor of the plaintiff. The insurer appealed. Further material facts are that the defendant Eleanor M. Kearney applied to the insurer for a motor vehicle liability policy in accordance with St. 1925, c. 346, as amended, as to compulsory motor vehicle insurance and that such policy was issued and was not canceled prior to the accident here in question. The application of the defendant Eleanor M. Kearney for registration of the motor vehicle in accordance with G. L. c. 90, § 2, as amended, was duly received by the department of public works of the Commonwealth and was accompanied by a certificate, executed by an agent of the insurer, stating that the insurer had issued to the applicant a motor vehicle liability policy of the form and nature required by St. 1925, c. 346, as amended, such policy to be effective on January 1, 1930, and to expire on December 31, 1930. The application stated that the applicant was owner of the motor vehicle in question. That motor vehicle was required to be insured under St. 1925, c. 346, as amended. Upon that application a certificate of registration for the motor vehicle was issued to the defendant Eleanor M. Kearney on or about January 1, 1930, which had not been canceled or annulled at the time of the fatal accident to the plaintiffs intestate. The motor vehicle described in the declarations attached to the policy and certificate and thus accurately identified is the motor vehicle involved in that accident. The plaintiffs intestate was not an employee of either of the individual defendants and was not entitled to benefit under the Workmens Compensation Act (G. L. [Ter. Ed.] c. 152). The defendant Eleanor M. Kearney at no time had a legal or equitable title to the motor vehicle. She never drove it. She had no license to operate it. It was purchased by her brother, Frank Kearney, who was husband of the defendant Mildred E. Kearney. When the fact as to ownership was discovered by the insurer, it immediately notified the other two defendants that it would not be responsible for any verdict rendered against either of them and would decline to defend actions against them, and that all its conduct in the premises would be under full reservation of all its rights. The defence of those actions against the individual defendants was assumed by personal counsel for the individual defendants.