ROBERT W. CROMPTON vs. LUMBERMENS MUTUAL CASUALTY COMPANY.

WHITTEMORE, J. The declaration in this case was upheld by this court on demurrer, 333 Mass. 160. We decided there that proceedings to recover under an automobile liability policy might be brought at law notwithstanding that the plaintiff against whom a judgment had been obtained, while within the definition of insured, was not the named insured with whom the insurer had directly contracted.

The case is now here on report from the Superior Court. The defendant, after our earlier decision, filed a motion for judgment under G. L. (Ter. Ed.) c. 231, Section 59, as appearing in St. 1955, c. 674, Section 1, with supporting affidavit. The plaintiff responded with an "affidavit of merit" and on the affidavits and in consideration of our earlier decision the judge in the Superior Court allowed the defendant's motion as a matter of law and reported the case.

The motion for judgment was erroneously allowed.

The motion presented the fact of a final decree in the Superior Court in a suit brought against the defendant, the insurer, by Albert A. Hansen, who held the judgment against the plaintiff, to reach and apply the defendant's obligation under the insurance policy. The answer had set up that decree. The case is controlled by Gleason v. Hardware Mutual Casualty Co. 329 Mass. 56, in which we held that the prior decree in the suit brought by the judgment holder, put in evidence at the trial, did not justify the

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direction of a verdict for the defendant. The basis of the decree for the insurer in that suit, and in Hansen's suit, was that the insured had failed to co”perate with the insurer as required by the policy. In both equity suits the insured had been joined as a defendant, had not defended, and had permitted a decree pro confesso to be entered against him. On the authority of Brown v. Great American Indemnity Co. 298 Mass. 101, we held in the Gleason case that as the parties then before the court had not been adversaries in the equity suit, the decree therein did not make res judicata as between those parties the issues there tried for the first time.

In the motion the defendant prayed for judgment on the ground that "the right of the plaintiff to recover herein depends upon the validity of the lien, if any, which one Albert A. Hansen has upon the proceeds of the insurance . . . ," that this court had held that the defendant might "test the validity" [Note p210-1] of that lien, and that it had already done so in the equity suit. This is not a syllogism demonstrating the defendant's right to judgment. Had we known that the Hansen suit had already been tried and disposed of, the language referred to would doubtless have been appropriately changed but the meaning is apparent and the principle is correct. The cases cited in the earlier opinion to the point made (Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445, 449, Sweeney v. Frew, 318 Mass. 595, 597) are two of the cases holding that the insurer in an action on the policy, though bound as to the facts determined in the action for negligence, may nevertheless defend on all other points necessary for recovery. The manifest right of the insurer to test the basis of the judgment holder's claim2 (by defending a suit or action or by a proceeding for declaratory relief under G. L. [Ter. Ed.]

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c. 231A to which both judgment holder and judgment defendant would be parties) does not mean that the right of the judgment defendant depends upon the validity of the judgment holder's claim. That claim, as the derivative right, does depend upon the judgment defendant's right to recover against the insurance company, but whether a particular determination that the latter right does not exist binds the judgment defendant turns on whether he was an adversary party to the determination.

The insurer objects to having to defend both a suit in equity and a subsequent action at law. That of course is not double liability as is suggested, even if the jury finds differently than did the judge. To avoid this result the defendant urges that we take note of certain allegedly distinguishing aspects of cases from other jurisdictions cited in our earlier decision ( 333 Mass. 160) and reverse that case. We are not disposed to do so. The issue was carefully considered and to any extent that the case constitutes an exception to Mellen v. Whipple, 1 Gray 317, it so stands.

Forcing the judgment defendant into equity in those cases in which he is not the named insured, would not avoid two suits in the other cases, which may be the greater number, where the judgment defendant is the named insured who purchased the policy and who would not be barred from bringing an action at law even if the rule of Mellen v. Whipple were applied in the appropriate case.

It would appear that the insurer could avoid two suits by seeking declaratory relief, either in connection with pending proceedings against it or by a prior suit. G. L. (Ter. Ed.) c. 231A, Section 6. [Note p211-1] See Kentucky Package Store, Inc. v. Checani, 331 Mass. 125, and Scullin v. Cities Service Oil Co. 304 Mass. 75, 84-85. Compare Rothberg v. Schmiedeskamp, ante, 172. That the insurer would remain subject to a jury's determination of the principal issue of its liability to the

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judgment defendant on the insurance policy (G. L. [Ter. Ed.] c. 231A, Section 1) is not an argument for deciding this case otherwise than in accordance with established principles.

The motion and supporting affidavit do not present as a ground for summary judgment the underlying facts found by the judge in Hansen's equity suit supporting his conclusion of lack of co”peration. We do not therefore have the question of whether, if such facts were stated as a ground for judgment and a genuine contest in regard thereto were not shown by the counter affidavit, judgment might be entered forthwith under G. L. (Ter. Ed.) c. 231, Section 59, as appearing in St. 1955, c. 674, Section 1. Compare Gleason v. Hardware Mutual Casualty Co. 331 Mass. 703.

The judge in the Superior Court denied a motion of the plaintiff to expunge from the defendant's answer the references to the equity suit. The motion should have been allowed for the reasons stated as to all save the last of the paragraphs following the words "And further answering, the defendant says that this action is barred by reason of the following facts, viz.:--" The first nineteen words of the last such paragraph should also be stricken.

The orders allowing the motion for judgment and denying the motion to expunge are reversed. Orders are to be entered denying the motion for judgment and allowing the motion to expunge to the extent hereinbefore indicated.

So ordered.