Hartford Accident & Indem. Co. v. Wolbarst

• Decision Date: 03 February 1948
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. v. WOLBARST et al.
• Court: New Hampshire Supreme Court

57 A.2d 151

HARTFORD ACCIDENT & INDEMNITY CO.

v.WOLBARST et al.

Supreme Court of New Hampshire.

Feb. 3, 1948.

Reserved and transferred from Superior Court, Grafton County; Goodnow, Judge.

Petition by Hartford Accident & Indemnity Company against Roger Wolbarst and another, for declaratory judgment to determine coverage under a motor vehicle liability insurance policy. Case transferred.

Judgment for defendants.

Petition, for a declaratory judgment to determine coverage under a motor vehicle liability insurance policy issued to Lauris A. Reynolds. The collision that gave rise to this proceeding occurred between the Reynolds car driven by the insured and containing a friend named Ott and a car preceding it operated by one Ernest Ball, Jr. In the Ball car was the defendant Roger Wolbarst with two girl passengers. The mishap took place July 11, 1942, on a highway a short distance out of Hanover at the entrance to Ware's garage.

Trial by the Court who adjudged that the plaintiff Company was not obliged to defend the several actions or to pay any judgment that might be recovered against the insured. A part of the findings is as follows: ‘The Court finds from all of the evidence that Reynolds deliberately and intentionally caused his vehicle to come in contact with the Ball car and that that contact caused Ball to lose control of his car and collide with the garage building. The bump given to the Ball car by the Reynolds car just prior to the collision of the Ball car with the garage building was a deliberate act on the part of Reynolds and was of sufficient force of itself to shake up the occupants of the Ball car. The occupants of the Ball car had not consented in any way to such a bumping or any similar invasion of their rights by the driver of the Reynolds car nor was such a deliberate act by Reynolds in any way justified or warranted. There was no intent on the part of Reynolds to injure the passengers of the Ball car in the manner that they were injured nor to damage the Ball car nor the garage in the manner they were damaged but he did intentionally and deliberately strike the rear of the Ball car with the front of his car.’

At the close of all the evidence the defendant Wolbarst moved that the petition be dismissed. Evidently, this was intended as a motion for judgment for the defendants. The motion was denied subject to the exception of the defendant Wolbarst. Various other exceptions were taken by him that do not require consideration. All questions of law raised by the exceptions were reserved and transferred by Goodnow, J. Devine & Millimet and J. A. Millimet, all of Manchester, for plaintiff.

Nighswander & Lord and A. H. Nighswander, all of Lanconia, for defendant Wolbarst.

JOHNSTON, Justice.

It is unnecessary to decide in which state, Vermont or New Hampshire, the policy should be deemed to have been delivered. It contained the following provision: ‘Such insurance as is afforded by this policy for bodily injury liability or property damage liability shall comply with the provisions of the Motor Vehicle Financial Responsibility Law of any state or province which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use of the automobile during the policy period. * * *’ The effect of this provision is that the policy issued to Mr. Reynolds conforms to the provision of the New Hampshire Motor Vehicle Financial Responsibility Act, since the collision occurred in this state. Lumbermans Mut. Casualty Company v. Blake, 94 N.H. 141, 145, 47 A.2d 874. That statute is Chapter 122 of the Revised Laws.

To comply with this Act, a policy is required to indemnify the insured ‘against loss by reason of the liability to pay damages to others for damage to property, except property of others in charge of the insured or his employees, or bodily injuries, including death at any time resulting therefrom, accidentally sustained during the term of said policy.’ R.L. c. 122, § 1, par. VII. The claim of the petitioner is that the injuries and the damage in the present case were not ‘accidentally sustained’ by the defendants because the collision was intended. It should be observed that the phrase ‘liability to pay damages' is not limited to any special tort.

The term ‘accident’ is not confined to a single meaning. ‘The word ‘accident’ is susceptible of and has received many definitions, varying with the connection in which it is used.' Chapin v. Ocean Accident & Guarantee Corporation, 96 Neb. 213, 217, 147 N.W. 465, 467, 52 L.R.A.,N.S., 227. It may mean a happening with no one at fault; one in which the injury or damage is intended as in some workmen's compensation cases (Newell v. Moreau, 94 N.H. 439, 55 A.2d 476); one in which the collision is intended but nothing subsequent thereto (Sheehan v. Goriansky, 321 Mass. 200, 72 N.E.2d 538; or one in which the proximate cause of the collision is intended but nothing thereafter as in cases of excessive speed, passing through a red light, etc. It may also apply to cases of simple negligence, gross negligence, wanton or wilful conduct.

The meaning expressly or impliedly given to the word in private policies or contracts independently of statutory requirements is not controlling. The point of view is different. Apart from statutory obligations and questions of public policy, insurers may sell such coverage as they wish. It may be common as in Newell v. John Hancock Life Insurance Company, 94 N.H. 26, 45 A.2d 579, 580, 166 A.L.R. 1111, which involved a contract of life insurance, to exclude from coverage casualties in which ‘death results, directly or indirectly, or wholly or partially, * * * from injuries intentionally inflicted on the Insured by any person.’

The point decisive of the present petition is the meaning to be given the statutory phrase, ‘accidentally sustained.’ ‘It must be noted that the terms and conditions of sec. 85.93, Stats., are a part of the insurance policy with like force and effect as though printed in the policy, and this is true whether the policy be considered an indemnity policy or a liability policy.’ Kujawa v. American Indemnity Company, 245 Wis. 361, 14 N.W.2d 31, 34, 151 A.L.R. 1133.

One of the...