Home MAE F. MORSE vs. THE EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD.

3 Mass. App. Ct. 712

February 27, 1975

This is a bill to reach and apply a liability insurance policy written by the defendant in satisfaction of a judgment previously obtained against the insured, Brenner's Department Store, Inc. (the Store), by reason of an accident on the Store's premises on May 7, 1969, in which the plaintiff was injured. In its appeal from the final decree of the Superior Court for the plaintiff, the defendant challenges the finding of the trial judge that the Store had notified the defendant of the plaintiff's claim "as soon as practicable" in accordance with the terms of the policy. The plaintiff, whose rights are derivative from those of the Store and subject to any defenses available to the defendant against the Store (Polito v. Galluzzo, 337 Mass. 360 , 363 [1958]), had the burden of proving that the defendant had been given such notice. Segal v. Aetna Cas. & Sur. Co. 337 Mass. 185 , 187 (1958). The judge found that letters notifying the Store of the plaintiff's claim, mailed respectively on or about May 14 and June 26, 1969, had been duly received by the Store, and neither party questions the propriety of that finding, which was plainly correct. Hobart-Farrell Plumbing & Heating Co. v. Klayman, 302 Mass. 508 , 509 (1939). Federal Ins. Co. v. Summers, 403 F. 2d 971, 975 (1st Cir. 1968). However, it was error for him to find that the Store had forwarded those letters to the defendant "in the normal course of business," as there was no evidence that the letters had been mailed to the defendant by any person on behalf of the Store (contrast Anderson v. Billerica, 309 Mass. 516 [1941]), nor any evidence that any such person had even seen the letters or acted upon them in any way whatsoever (see Schneider v. Boston Elev. Ry. 259 Mass. 564 , 566 [1927]; compare Leasing Associates, Inc. v. Slaughter & Sons, Inc. 450 F. 2d 174, 180 [8th Cir. 1971]; contrast Prudential Trust Co. v. Hayes, 247 Mass. 311 , 313-315 [1924]; Meehan v. North Adams Sav. Bank, 302 Mass. 357 , 363-364 [1939]). The earliest notice of the plaintiff's claim to the defendant which the evidence discloses was at some time after August 21, 1969, when the plaintiff commenced her tort action against the Store. That notice was too late as a matter of law. Segal v. Aetna Cas. & Sur. Co., supra, at 188-189. Brackman v. American Employers' Ins. Co. 349 Mass. 767 (1965). Pawtucket Mut. Ins. Co. v. Dolby, 305 F. Supp. 703, 706 (D. Mass. 1969). The decree is therefore reversed, and a decree is to be entered dismissing the bill.

So ordered.

Home DOROTHY CLERKIN vs. WILLIAM J. CLERKIN (and a companion case).

3 Mass. App. Ct. 712

February 27, 1975

The wife has failed to pursue her appeals from a decree of a Probate Court dismissing her petition for separate support and from the entry of a decree nisi on a libel for divorce brought by her husband. He has appealed from the refusal of the judge to order a conveyance to him of the wife's interest in real estate held by them as tenants by the entirety. The sole basis for such an order upon a libel for divorce is found in G. L. c. 208, Section 34 (as in effect prior to St. 1974, c. 565): "Upon a divorce . . . the court may decree alimony to the wife, or a part of her estate, in the nature of alimony to the husband." The evidence is not reported but the judge made a report of material facts.

Page 713

The facts found by him amply support his conclusion that the relative financial needs and resources of the parties do not warrant a conveyance of the wife's interest in the real estate to the husband. "Property taken from the wife's estate and given to the husband by decree based upon G. L. c. 208, Section 34, must be in the nature of alimony. The award must be made as a provision for his support and maintenance and not for the purpose of a division of their properties. The general principles which govern the granting of alimony to a wife are applicable in determining whether an award from the wife's estate be decreed in the nature of alimony to the husband. The necessities of the husband, the pecuniary means of the wife, including the value of her interest in their real estate, and the condition in life of the parties, must all be taken into consideration." Ober v. Ober, 1 Mass. App. Ct. 32 , 35 (1973), and cases cited. The wife's appeals are dismissed, and the decree nisi of divorce is affirmed.

So ordered.