Hobbs v. Cunningham Et Al‪.‬

CROSBY, J. This is a bill in equity brought under G. L. c. 175, § 113, as amended by St. 1923, c. 149, §
2, to reach and apply in satisfaction of a final judgment obtained by the plaintiff against the defendant Cunningham, the
obligation of the defendant Eagle Indemnity Company (herein referred to as the defendant) under a policy of automobile liability
insurance. The case was heard by a Judge of the superior court who made certain findings of fact and ordered a final decree
to be entered in favor of the plaintiff. From this decree the defendant appealed. The defendant also excepted to the denial
of certain requests for rulings made by it and to the allowance of others presented by the plaintiff. The trial Judge found the following facts: on January 1, 1928, one Herbert Evans was the owner of a taxicab which was duly
registered, and the defendant, under G. L. c. 90, as amended by St. 1925, c. 346, issued to him a policy of insurance. Evans
died testate on June 25, 1928, and, was the owner of the taxicab at the date of his death. His will was duly allowed by the
probate court on September 25, 1928, and Michael F. O'Neill was appointed administrator with the will annexed. By his will
the testator bequeathed the taxicab to O'Neill. Cunningham operated the taxicab for Evans before his death. Thereafter O'Neill
took possession of it and continued its operation by Cunningham under an arrangement whereby O'Neill was to be paid sixty
per cent. of the gross receipts and to attend to the repairs. The same arrangement continued during the year 1928 after the
death of Evans. As there was not sufficient money in the estate to pay the debts and funeral expenses, O'Neill paid some of
them from his share of the receipts from the taxicab. On November 6, 1928, the taxicab while operated by Cunningham struck
and injured the plaintiff. After O'Neill's appointment as administrator he went to the registry of motor vehicles to see about
having the registration of the taxicab transferred to himself as legatee, but failed to do so, nor did he at any time before
the accident by bill of sale or otherwise by any overt act 'manifest an intention to transfer title to the taxicab from himself
as administrator to himself as legatee. * * *' The registration of the taxicab remained in Evans's name during the entire
year 1928. There was no compliance with G. L. c. 140, § 65. Upon all the evidence the Judge found and ruled that
before the accident there had not been any definite, unequivocal and final act of transfer of the taxicab from O'Neill as
administrator to himself as legatee; that it was an asset of the estate of Evans at the time of the accident, and that Cunningham
was operating it with the express or implied consent of O'Neill as administrator.