CAREY C. MCKISSICK vs. THE TRAVELERS INSURANCE COMPANY.

CAREY C. MCKISSICK vs. THE TRAVELERS INSURANCE COMPANY.

337 Mass. 477

March 5, 1958 - May 6, 1958

Worcester County

Present: WILKINS, C.J., SPALDING, WILLIAMS, COUNIHAN, & WHITTEMORE, JJ.

A finding, made in a suit in equity to reach and apply the obligation of the insurer under a motor vehicle liability insurance policy to the satisfaction of a judgment obtained by the plaintiff in an action against one having the status of an unnamed insured under the policy for personal injuries resulting from such insured's operation of the automobile covered thereby, that such insured had failed to comply with a cooperation clause in the policy, did not make the matter of his cooperation res judicata in a subsequent action by him against the insurer on the policy to recover the amount of the judgment where it appeared that, although he had been a witness at the trial of the suit in equity, he had not been a party to that suit.

CONTRACT. Writ in the Superior Court dated September 24, 1956.

A motion for judgment for the defendant was allowed by Meagher, J.

Charles W. Proctor, for the plaintiff.

Francis H. George, for the defendant.

COUNIHAN, J. This is an action of contract brought against the defendant to recover the amount of a judgment in an action of tort against the plaintiff by David Williams, a minor, for personal injuries caused by the negligence of the plaintiff in the operation of an automobile owned by Donald M. Williams, the father of David.

The defendant had issued a liability policy to Donald M. Williams, hereinafter called the insured, and when the accident happened the plaintiff in this action was operating the automobile with the consent of the insured. The policy covered the operation of the automobile by the insured

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and any person who was operating it with his consent. Crompton v. Lumbermens Mutual Casualty Co. 333 Mass. 160 , 162, 165.

In the present action the defendant filed a motion for judgment under G. L. c. 231, Section 59, as appearing in St. 1955, c. 674, Section 1, accompanied by an alleged supporting affidavit. [Note 1] The plaintiff filed no counter affidavit. After hearing, the motion for judgment was allowed and the plaintiff excepted which brings the action before us. We are of opinion that there was error in the allowance of the motion for judgment.

The facts set out in the affidavit of the defendant, if it was a suitable one, are taken to be admitted for the purposes of the motion for judgment in the absence of a counter affidavit by the plaintiff. C. 231, Section 59. See Krantz v. John Hancock Mutual Life Ins. Co. 335 Mass. 703 .

In its answer in the case at bar the defendant by way of a petition for a declaratory judgment, G. L. c. 231A, Section 6, sets out that after the judgment in the tort action David Williams, the plaintiff in that action, brought a bill in equity to reach and apply the proceeds of the policy issued by the defendant. The present plaintiff was not a party nor an adversary in the trial of that suit. He was called as a witness by David and testified on direct and cross-examination. After a hearing on that bill the judge filed a "memorandum of findings of fact" and an order for a decree dismissing that bill. The essential part of his findings upon which the defendant relies reads, "I find that the evidence given by McKissick and Donald M. Williams to the jury [in the tort action] was false, and that there was an intention to deceive in material matters. I find that the insurance company was highly prejudiced in its attempt to successfully defend the action. I find that both McKissick and Williams failed to cooperate with the insurance company and have violated the terms of the policy." The

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decree dismissing that bill was affirmed by this court. Williams v. Travelers Ins. Co. 330 Mass. 476 .

Subsequently, as we have said, the defendant filed a motion for judgment accompanied by an affidavit solely based upon the findings of the judge in the equity suit.

The present plaintiff admittedly was not a party nor an adversary in the equity suit and the findings of the judge in that suit were not res judicata of the present action. No counter affidavit of the plaintiff could be filed because obviously the defendant correctly set out the findings of the judge in the suit.

Moreover the plaintiff in these circumstances was not obliged to file a counter affidavit because c. 231, Section 59, requires that "Said motion may be accompanied by affidavits on personal knowledge of admissible facts as to which it appears affirmatively that the affiants would be competent to testify."

It is well settled in our jurisdiction that a bill in equity by an injured person to reach and apply the proceeds of an insurance policy is a separate proceeding from an action like the present one and is not res judicata as to it. Brown v. Great American Indemnity Co. 298 Mass. 101 . Gleason v. Hardware Mutual Casualty Co. 324 Mass. 695 , 699. S. C. 329 Mass. 56 . Crompton v. Lumbermens Mutual Casualty Co. 334 Mass. 207 .

Furthermore we are of opinion that the findings of the judge in the equity suit as such would not be admissible if the present action went to trial.

Exceptions sustained.

FOOTNOTES

[Note 1] The important words in c. 231, Section 59, are "Said motion may be accompanied by affidavits on personal knowledge (emphasis supplied) of admissible facts as to which it appears affirmatively that the affiants would be competent to testify."