Home THE TRAVELERS INSURANCE COMPANY vs. AETNA INSURANCE COMPANY & others.

359 Mass. 743

April 6, 1971

The plaintiff the Travelers Insurance Company (Travelers) seeks $3,000 from the defendant Aetna Insurance Company (Aetna) in a bill for contribution among coinsurers. From a decree ordering contribution the defendant Aetna appealed. Travelers insured the defendant Audet's Market, Inc. (Audet's) under a standard form automobile policy on a vehicle used in Audet's business. [Note 1] Aetna insured Audet's on a "Special Multi-Peril Policy -- Special Retail Store Form" against all personal injury and property damage for which Audet's might be liable arising from use of its premises and operations incidental thereto. In the Aetna policy "Insured" was defined as "(1) the Named Insured, [and] (2) any . . . executive officer, director or stockholder thereof . . .." An accident occurred which severely injured a small boy when the vehicle slid downhill from its parking place outside Audet's. An action against Audet's was settled by Travelers for $6,000, which it was agreed was a reasonable disposition of the claim. Of three individuals who might have been found negligent only one was an executive officer, director or stockholder of Audet's. The trial judge ruled that Aetna was liable in that a "corporation can only act through its agents and servants" and that the words "executive officer, director or stockholder" in effect merely added particular officers to the protection of the policy in addition to Audet's itself which was protected "for the normal liability of a corporation" for the acts of its agents and servants. Audet's, as a named insured, was protected without regard to whether the employee or agent responsible for the corporation's liability was individually a named insured. Travelers was entitled to contribution because of its satisfaction of the liability of Audet's. The final decree of March 4, 1969, is affirmed, with interest thereon to be computed from that date.

So ordered.


FOOTNOTES

[Note 1] Henry S. Cote, an employee of Audet's, who had last parked the vehicle, is also a defendant.

Home S. S. PIERCE COMPANY, INC. vs. MELVIN L. BREGER.

359 Mass. 743

April 6, 1971

The issues on this appeal from an order of the Appellate Division dismissing a report from the Municipal Court of the City of Boston are adequately dealt with in the Appellate Division's opinion. There is no error.

Order dismissing report affirmed.

Home MARIO MISCI vs. REVERE HOUSING AUTHORITY.

359 Mass. 743

April 6, 1971

This is an action of contract to recover $2,153 for legal services and expenses rendered to the defendant, Revere Housing Authority (Authority), by the plaintiff, an attorney. The judge found for the plaintiff. On report, the Appellate Division, in a well-reasoned opinion, vacated the finding and ordered a finding

Page 744

to be entered for the defendant. The plaintiff contends that he should be allowed to recover either on the contract or in quantum meruit. The defendant invokes the conflict of interest clause in the Authority's contract with the Federal government, which prohibits the hiring of former members of the Authority during the twelve month period immediately following the termination of their membership. It is not disputed that the plaintiff was a former member of the Authority and that the services in question were rendered during the twelve month period. We are of opinion that public policy favors strict enforcement of this agreement, and that the plaintiff was therefore disqualified from accepting the employment contract in question. Nor can the plaintiff recover under quantum meruit. As an attorney he must be taken to have known the restrictions applicable to his employment. In rejecting a similar argument, it was said, "'The doctrine of implied contract cannot be invoked to do rough justice and fasten liability where the legal requirements specifically prohibit.' . . . [citing cases]." Kelly v. Cohoes Housing Authy. 27 App. Div. 2d (N. Y.) 463, 465, affd. 23 N. Y. 2d 692. The plaintiff's argument that the judge's decision is not reviewable because the defendant's requests for rulings of law were either actually requests for findings of fact or were improper in form is not persuasive. Request no. 1, while not artistically drawn, sufficiently raises the issues discussed above. See Adamaitis v. Metropolitan Life Ins. Co. 295 Mass. 215 , 221. Moreover, since the Appellate Division reviewed this ruling, it is properly before us on appeal. John T. Blackburn, Inc. v. Livermore, 317 Mass. 20 , 22.

Order of Appellate Division affirmed.