Home JOHN J. AUSTIN vs. SIMON WOLFSON.

328 Mass. 652

November 29, 1951


Exceptions overruled. In this action of tort to recover for personal injuries resulting from a collision of automobiles at the intersection of Park and Spencer streets in Dorchester on April 16, 1946, the only question presented is whether as matter of law the plaintiff was guilty of negligence which contributed to the accident. Each street was from twenty to twenty-five feet in width. There was evidence that the plaintiff approached the intersection from the east at a speed of fifteen miles per hour. His view to the right or north, from which direction the defendant was approaching at a speed of ten miles per hour, was obstructed by a building on the northeasterly corner of the intersection. The plaintiff entered the intersection first, without looking to his right, and his automobile was struck by the defendant's automobile at or near the north-westerly corner. Although the distance of the defendant's automobile from the intersection at the time the plaintiff's automobile entered is not in evidence, the jury could have found that at the respective speeds at which the automobiles were proceeding the plaintiff, if he had looked and seen the defendant's automobile, was not negligent in proceeding across the intersection. See G. L. (Ter. Ed.) c. 89, Section 8; Morton v. Dobson, 307 Mass. 394 ; Brightman v. Blanchette, 307 Mass. 584 ; Harlow v. Corcoran, 290 Mass. 289 , 293; Cohen v. Martin, 298 Mass. 425 , 427; Gaines v. Ratnowsky, 311 Mass. 254 , 258. There was no error in denying the defendant's motion for a directed verdict.

Home HENRY A. HALE vs. LILLIAN T. HALE.

328 Mass. 652

November 30, 1951


Decree affirmed. The parties were married on January 14, 1938. On November 25, 1949, the husband brought a libel for divorce on the ground of cruel and abusive treatment. The answer of the wife alleged condonation, and cruel and abusive treatment on the part of the husband by way of recrimination. The judge, on April 17, 1950, entered a decree nisi for divorce in favor of the husband, and the wife appealed. There is a finding of material facts, and the evidence is reported. The judge found that disputes between the parties began soon after their marriage, and continued until they separated. He found that the wife married the husband for money and protection, and had no affection for him. He found that the wife assaulted the husband on many occasions, and that her conduct injured his health, and that she intended that result. He found no condonation on his part. As to recrimination, there was evidence that the husband assaulted her at times, but the judge was not required to believe this evidence, nor, if he believed it, to find that his conduct constituted cruel and abusive treatment. See Brown v. Brown, 323 Mass. 332 ; Hayden v. Hayden, 326 Mass. 587 .

Home JOHN T. KILEY vs. THEODORE STANLEY & another.

328 Mass. 652

February 1, 1952


Decree affirmed with costs of appeal. This is a bill in equity filed under G. L. (Ter. Ed.) c. 175, Section 113; c. 214, Section 3 (10), to reach and apply the proceeds of a motor vehicle liability policy, issued by the defendant insurance company

Page 653

to one Moffett, in satisfaction of a judgment recovered by the plaintiff against the defendant Stanley who was operating Moffett's automobile accompanied by one Fuery. The judge found that Moffett lent her automobile to one Meecham who permitted his chauffeur Fuery, to operate it. The sole question presented by the plaintiff is whether the mere fact that Fuery was with Stanley requires as matter of law "a ruling that the automobile was upon the highways with the implied consent of the assured." We have no report of the evidence. The findings indicate that the evidence would not support any such ruling. Indeed, the only inference that can be drawn from them, Distasio v. Surrette Storage Battery Co. 316 Mass. 133 , 135; Perkins v. Becker's Conservatories, Inc. 318 Mass. 407 , 411, is that Stanley was not a person responsible to Moffett for the operation of her automobile with her implied consent. The indemnity of the policy cannot be reached to secure a judgment against Stanley. Whether it could be if the judgment were against Fuery is not open. The decree dismissing the bill was right. The plaintiff's motion to substitute Fuery for Stanley is denied. Moschella v. Kilderry, 290 Mass. 62 . Novo v. Employers' Liability Assurance Assurance Corp. Ltd., 295 Mass. 232 . Woznicki v. Travelers Ins. co. 299 Mass. 244 . White v. Standard Accident Ins. Co. 302 Mass. 474 .