In support of its exception, the plaintiff takes the position that a finding that there was no express consent was "mandatory" in view of the testimony of both Page and Mrs. Hill that Page was instructed not to drive the car; and that there was no evidence of any "course of conduct" to warrant the finding of implied consent in the face of this testimony of express prohibition. See Standard c. Ins. Co. v. Gore, 99 N.H. 277, 282; Allstate Ins. Co. v. Hodsdon, 92 N.H. 233. The defendant Blakeslee asserts that the finding of the Trial Court was warranted by the undisputed evidence that Mrs. Hill gave Page the ignition keys, and by the evidence bearing upon the relationship between them.
While such a standard has not always been clearly expressed, it has been applied. In Standard Accident Insurance Company v. Gore, 99 N.H. 277, 109 A.2d 566 (1954) a mother's admonition to her son not to use her automobile as a taxi was not an effective termination. In so holding the court said: "Whether it was revoked by the owner turned upon the reasonable meaning of what she said, rather than some interpretation which her son may have given it in his testimony."
Implied consent is also presumed from the parties' course of conduct and relationship. Allstate Ins. Co. v. State Farm Mutual Automobile Ins. Co., 260 S.C. 350, 195 S.E.2d 711, 713 (1973); Standard Acc. Ins. Co. v. Gore, 99 N.H. 277, 109 A.2d 566, 570 (1954). Implied contracts are inferred from the parties' conduct and actions, Kirk v. United States, 451 F.2d 690, 695 (10th Cir. 1971); Western Contracting Corp. v. Sooner Const. Co., 256 F.Supp. 163, 167 (W.D.Okl. 1966), or dictated by reason and justice.
The burden is on the insured to prove that notice of the accident was given as soon as practicable as required by the policy condition. Travelers Ins. Co. v. Greenough, 88 N.H. 391, 393, 190 A. 129, 109 A.L.R. 1096; Standard Accident Ins. Co. v. Gore, 99 N.H. 277, 280, 109 A.2d 566; American Fidelity Co. v. Hotel Poultney, 118 Vt. 136, 138, 102 A.2d 322; Meierdierck v. Miller, 394 Pa. 484, 486, 147 A.2d 406; 13 Couch on Insurance 2d, s. 49:330, p. 808. "Unless the circumstances are such that no reasonable man could find that notice was given as soon as was reasonably possible, the question of whether the policy requirements as to notice have been met is a question of fact for the Trial Court."
As distinguished from the general burden of proof on the case as a whole, the burden was on the insured to establish a compliance with the provision respecting the giving of notice of an occurrence "as soon as practicable," or in the alternative to show a valid reason for not giving such notice as soon as practicable. Preferred Accident Insurance Company of New York v. Grasso, 2 Cir., 186 F.2d 987, 23 A.L.R.2d 1234; M.F.A. Mutual Insurance Company v. Quinn, 259 S.W.2d 854 (Mo.App.); Standard Accident Insurance Company v. Gore, 99 N.H. 277, 109 A.2d 566; and American Fidelity Company v. Hotel Poultney, 118 Vt. 136, 102 A.2d 322. The insurer is not required to show that it was prejudiced by failure to give notice.
We do not separately consider the question of whether the testimony of the plaintiff's expert was without foundation. The issue of foundation goes to the admissibility of the evidence, see Connell v. State Oil Co., 93 N.H. 244, 246, 40 A.2d 743, 744 (1944), and thus an objection based on foundation must be taken at the time the testimony is introduced. Because the defendant did not do so in this case, his claim is waived on appeal. Standard c. Ins. Co. v. Gore, 99 N.H. 277, 283, 109 A.2d 566, 571 (1954). We reject the defendant's argument that the case should have been taken from the jury because the alleged malpractice was really a question of professional judgment.
See generally 5 Loy.U.L.J. 284 (1974).See, e.g., National Grange Mut. Ins. Co. v. Gervais, 106 N.H. 36, 203 A.2d 645, 646 (1964) ("would rather not have him take [the] car into Canada"); Standard Accident Ins. Co. v. Gore, 99 N.H. 277, 109 A.2d 566, 568 (1954) ("Well, that's all right but please don't use it as a taxi all night"); Costanzo v. Pennsylvania Threshermen Farmers' Mut. Cas. Ins. Co., 30 N.J. 262, 152 A.2d 589, 591 (1959) ("not be out running around"); Liberty Mut. Ins. Co. v. Behringer, 419 S.W.2d 651, 653 (Tex.Civ.App. 1967) ("No you're not taking him for a ride"); or, as here, "Don't monkey with it", Duvall depo. p. 19.
We find no grounds for a new trial on that basis. Standard c. Ins. Co. v. Gore, 99 N.H. 277, 283, 109 A.2d 566, 571 (1954). Plaintiff's reliance on Rasquin v. Cohen, 92 N.H. 440, 33 A.2d 404 (1943), is misplaced.
The insured bears the burden of showing that notice of the accident was given as soon as reasonably possible. Standard Acc. Ins. Co. v. Gore, 99 N.H. 277, 280, 109 A.2d 566, 569 (1954). Whether the notice provisions of the policy have been complied with is a factual question for the trial court.
15A C.J.S. 576, Consent; Black's Law Dictionary, Fourth Edition; Bouvier's Law Dictionary, Unabridged, Rawle's Third Revision; In re Estate of Seeger, supra; Bartle v. Bartle, 132 Wis. 392, 112 N.W. 471 (1907); State v. Stanfield, supra. Implied consent may be inferred from a course of conduct and the relationship between the parties. Standard Accident Insurance Co. v. Gore, 99 N.H. 277, 109 A.2d 566 (1954). Although we have not specifically stated the foregoing principles as to implied consent, we have given them effect without stating them.