Summary
In Merchants' Mutual Casualty Co. v. Pinard, 87 N.H. 473, 183 A. 36, 72 A.L.R. 1390, the suit by the insurer was for a declaratory judgment, and the only issue presented was whether or not the conditional sale had been consummated.
Summary of this case from Home Indemnity Co. v. BowersOpinion
Decided February 4, 1936.
If one insured against liability arising from operation of his car sells and delivers it to a purchaser by a conditional sale, retaining title only as security, the liability of such purchaser for its negligent operation is not within the coverage of the policy.
PETITION, for a declaratory judgment. The plaintiff issued a policy insuring the owner of an automobile for liability in its operation. An accident occurred while it was being driven by one of the defendants. A master found that he had bought it from the insured under an oral contract of conditional sale. Exceptions were taken to this finding, to the allowance of the master's report, and to the denial of a motion to recommit it. Transferred by Burque, J.
Devine Tobin (Mr. Tobin orally), for the plaintiff.
Arthur B. Hayden and Osgood Osgood (Mr. Hayden orally), for the defendant Karafotias.
The master was warranted in finding a conditional sale of the automobile. The insured testified that he sold it and had nothing to do with it after the sale. There was other evidence tending to show that he gave up possession and control when he sold. If a contract other than one of such a sale might have been found, the evidence did not compel the trier thus to find. The circumstances claimed to disprove a conditional sale are not conclusive to such effect.
The insured retaining title only for security (Mercier v. Company, 84 N.H. 59, 63, 64), the accident is not within the coverage of the policy.
Exceptions overruled.
MARBLE, J., was absent.