Opinion
No. 5937.
Decided December 30, 1969.
1. When an operator of a motor vehicle has motor vehicle liability insurance and is involved in a motor vehicle accident while operating the motor vehicle of another person who has motor vehicle liability insurance, the insurer of the operator is liable to a plaintiff to the extent that the operator is not covered by the insurer of the owner of the motor vehicle.
2. When the operator of a motor vehicle took her sister's motor vehicle with the allegation that, after picking up her children and taking them home and arranging for a baby sitter, she would return for a party planned that evening for their brother, but, in fact, she intended to and did, after establishing her children with a baby sitter, proceed with a girl friend to travel about that evening and to drink, dance, and acquire male companions, one of whom was injured in a motor vehicle accident while they were transporting him to his home, the Trial Court, upon all the evidence, was sustained in finding that the operator of the motor vehicle had original possession of the motor vehicle with the permission of her sister, the owner, and while she exceeded her sister's permission and was guilty of misconduct, her actions were not calculated to deprive the owner of her property in the motor vehicle and, therefore, RSA 268:16, VI was applicable.
3. Submittal of more than ninety-six requests for findings and rulings of law, including requests to find what parties claimed in their testimony and to make hypothetical rulings of law, was contrary to the design of RSA 491:15 which was to provide a simple and expeditious method of presenting to the law court the questions of law arising on the facts proven, as distinguished from the evidence.
Gormley Calamari (Mr. John E. Gormley orally), for Concord General Mutual Insurance Company.
Thomas M. Walsh, for Marie Cecile Haynes, furnished no brief.
Arthur O. Dupont and Rich Burns, for Edmund Rouleau, furnished no brief.
Hinkley Donovan (Mr. Walter D. Hinkley orally), for New Hampshire Insurance Company.
This is a petition for a declaratory judgment brought by the plaintiff to determine coverage under a certain motor vehicle liability policy issued by the plaintiff to one Pearl Perron, as the named insured, covering a certain 1962 Chevrolet sedan owned by Perron which was involved in an accident in Columbia, New Hampshire.
Marie Cecile Haynes was the operator of the car at the time of the accident. Edmund Rouleau a passenger in the car at the time of the accident has brought suit against Marie Haynes and Pearl Perron for injuries sustained in the accident. New Hampshire Insurance Company, as insurer of Marie Haynes, is liable to the extent that Marie Haynes is not covered by Concord for the accident.
The Trial Court (Grant, J.) ruled that Concord was required by the provisions of RSA 268:16 to furnish minimum liability coverage to Marie Haynes for the accident and reserved and transferred the plaintiff Concord's exceptions. The issue of coverage under the policy is not before us.
The Trial Court made certain findings of fact and adopted certain requests for findings and rulings filed by both Concord and New Hampshire. These establish the essential facts as follows:
Marie Haynes for a number of years prior to the date of the accident had used cars belonging to her half-sister Pearl Perron on errands for her half-sister and for her own purposes and on occasion had kept Perron cars overnight. On April 2, 1966, the day of the accident, Marie had been at the home of Pearl in Lemington, Vermont assisting her in the preparation for a party to be held that night for a visiting brother of theirs. She had taken Pearl's car home with permission the night before the accident and had returned to Pearl's on April 2. That afternoon she used Pearl's car with permission to obtain liquor, beer and other supplies for the party. Pearl operated a used car lot but the car in question was the only one with insurance coverage.
Toward the end of the afternoon Marie picked up Gloria Hanks and when she returned to the Perron Home for the last time she had Gloria Hanks get out of the car and wait for her on the New Hampshire side of the Connecticut river a short distance from the Perron house. This she did because of her sister's antipathy to Gloria and the probability that her sister would forbid her to proceed with Gloria in the car. She told her sister that she was picking up her children in Colebrook and taking them and a baby sitter home and that she would change her clothes and return to the party.
Marie Haynes never attended the party although her husband did. Instead she picked up Gloria on the other side of the bridge, established her children with the baby sitter, and went off with Gloria on a trip which led her into Vermont and Canada and finally to the accident in Columbia, New Hampshire.
At some point in their travels they landed in a care in Beecher Falls, Vermont where they drank, danced and acquired as companions Edmund Rouleau and Roger Corriveau. Rouleau's wife having departed the care with his car and left him without transportation Marie agreed to drive the four of them when they left Beecher Falls. All four were in the car when the accident happened about eleven P.M. in Columbia, New Hampshire.
After the accident Pearl Perron caused a complaint to be brought against Marie for taking and using the automobile without the consent of the owner. Marie pleaded guilty to this charge in the Colebrook District Court and the $15 fine imposed was paid by Pearl.
The Trial Court found that Marie Haynes had original possession of the automobile with the permission of Pearl Perron and that, while she exceeded her permission and was guilty of misconduct, her actions were not calculated to deprive the owner of her property in the vehicle. Accordingly he ruled that Concord was obligated to defend in accordance with RSA 268:16.
RSA 268:16 VI provides as follows: "The insurance applies to any person who has obtained possession or control of the motor vehicle of the insured with his express or implied consent even though the use in the course of which liability to pay damages arises has been expressly or impliedly forbidden by the insured or is otherwise unauthorized. This provision, however, shall not apply to the use of a motor vehicle converted with the intent wrongfully to deprive the owner of his property therein."
Concord argues that the findings of the Trial Court required a ruling that there was no coverage.
There are some ambiguities in the findings, and the number and form of the requests submitted by the parties here invited ambiguity. The Trial Court made rather brief findings of his own and then stated: "Further recital is unnecessary, as the Court has answered the ninety-six requests submitted by counsel." This mild comment understated the number of requests and complexity of the task counsel imposed upon the Court. Concord in many cases included a half dozen or more requests under a single number. They included requests to find what parties claimed in their testimony and to make hypothetical rulings of law. The procedure employed here was contrary to the design of RSA 491:15 which "was to provide a simple and expeditious method of presenting to the law court the questions of law arising on the facts proven, as distinguished from the evidence." Tilton v. Sharpe, 84 N.H. 393, 396, 151 A. 452; Gowen v. Swain, 90 N.H. 383, 385, 10 A.2d 249.
Under all the circumstances of this case the findings which were made, considered as a whole, were consistent with the decree and warranted by the evidence. Franklin v. Wirz, 104 N.H. 335, 338, 186 A.2d 151.
Concord argues that Marie Haynes fraudulently obtained consent to use the car and this vitiates the consent. It is unnecessary to consider the validity of this argument as the Trial Court specifically refused to find fraud. The finding relied upon by Concord that Marie Haynes secretly without Pearl's permission took the motor vehicle and proceeded to Beecher Falls, Vermont constitutes no more than a finding that Marie went to Beecher Falls without permission. The evidence supports the Trial Court's findings that while Marie engaged in activities with the car that would have been forbidden by the owner had she known of them, her use of the car was not such as to prevent coverage under RSA 268:16 VI. Allstate Ins. Co. v. Page, 105 N.H. 410, 200 A.2d 851.
Exceptions overruled.
All concurred.