Albert v. Me. Bonding & Cas. Co.

• Decision Date: 07 February 1949
• Court: Maine Supreme Court
• Parties: ALBERT v. MAINE BONDING & CASUALTY CO.

64 A.2d 27

ALBERT

v.MAINE BONDING & CASUALTY CO.

Supreme Judicial Court of Maine.

Feb. 7, 1949.

Exceptions from Superior Court, Aroostook County, at Law.

Action of assumpsit on automobile liability insurance policy by Maxime Albert against Maine Bonding & Casualty Company. The jury found a verdict for the plaintiff, and the defendant brings exceptions to denial of motion to direct and to refusal to give requested instructions.

Exceptions overruled.

Harry C. McManus, of Van Buren, and Scott Brown, of Houlton, for plaintiff.

William B. Mahoney, of Portland, and George B. Barnes, of Houlton, for defendant.

Before STURGIS, C. J., and THAXTER, MURCHIE, TOMPKINS, FELLOWS, and MERRILL, JJ.

FELLOWS, Justice.

This is an action of assumpsit on an automobile liability insurance policy, brought in Aroostook County Superior Court under Revised Statutes 1944, Chapter 100, Section 40. The defendant pleaded no coverage because it claimed that the person who was killed was an employee of the assured plaintiff, and as employee excluded by the policy; and also pleaded that the amount sued for was voluntarily paid by the plaintiff in settlement, without trial as provided in the policy and without the consent of defendant. The plaintiff filed replication stating that the injured man was not an employee at the time of the injury; and further that the defendant was estopped, by the acts and promises of its agents, to complain of the settlement which plaintiff made because of the lack of time to prepare for trial. The jury found a verdict for the plaintiff in the sum of $2806.25. The case is now before the Law Court on defendant's exceptions to denial of motion to direct a verdict, and exceptions to refusal to give three requested instructions.

The facts that the jury probably found are, that Maxime Albert, the plaintiff, purchased of the defendant company an insurance policy to protect him against liability on a truck owned by him. The policy limits were five thousand dollars for ‘each person’ and ten thousand for ‘each accident.’ The plaintiff was a farmer living in Frenchville, Maine, and raised potatoes on his farm in Frenchville, and also on a farm in St. Agatha eight miles away. During the harvesting season of 1944, one Pierre Langdo of Frenchville assisted in picking at twenty cents a barrel. Langdo furnished his own board, and there was no contract or arrangement between Langdo and the plaintiff for transportation to and from work. For transportation home Langdo rode in any automobile that might be going his way. Sometimes he rode in automobiles of other employees of the plaintiff, sometimes ‘in a truck he had,’ and he occasionally rode in the back of plaintiff's truck. When plaintiff was digging on the Frenchville farm Langdo always walked home.

After work on October 3, 1944, the plaintiff's truck, loaded with potatoes, left the field in St. Agatha for the potato warehouse in Frenchville. One employee named Bois, a resident of Quebec, was the driver, and the plaintiff was in the cab with the driver. The truck stopped at the warehouse in Frenchville and, while unloading, the plaintiff first learned that Langdo was riding on the rear of his truck. The truck turned sharply to go into plaintiff's home driveway, and Langdo was probably thrown off, receiving the injuries from which he died.

The assured plaintiff, Maxime Albert, immediately notified the defendant insurance company of the accident by communicating with its Madawaska agent, Cyr, who sold the policy. Cyr informed the plaintiff that the company would ‘take care’ of the matter. An adjuster, Mr. Tidd, also interviewed the plaintiff later, while securing statements and other evidence, and told the plaintiff ‘don't worry, we will take care of it.’ During the fall and winter of 1944-5 the plaintiff made several other calls on Agent Cyr and was promised each time that ‘we will see to it’ and ‘Mr. Tidd will take care of it.’

On March 3, 1945, a writ with ad damnum of $15,000 was served on this plaintiff, Maxime Albert, brought by Odelie Langdo administratrix, to recover for the death of Langdo, returnable to the April term of Superior Court (April 3, 1945) at Houlton, with notice for trial. The summons was at once given to the Agent Cyr by Maxime Albert, who again promised Albert that the matter would be taken care of by the company.

The evidence is conflicting as to whether the adjuster Tidd notified this plaintiff Albert on March 9, 1945, that the defendant claimed no coverage and would not defend, or whether the first notice of the company's definite intention to abandon was given by letter of the company dated March 28, 1945. The plaintiff did testify that some days after he had delivered the summons in the Langdo case to the Agent Cyr, the company adjuster Tidd told ‘me he won't bother for that case; I could settle.’ In any event, it was but a matter of days before the April term of court when Maxime Albert knew that the defendant company would not defend the suit against him as was provided in the policy.

After the $15,000 Langdo suit was brought, and after Albert or his attorney learned that the company refused to defend, Albert endeavored to find Bois, who drove the truck, and Labrie who rode in the rear with Langdo, as his only witnesses. These two men were then outside the state and somewhere in Quebec or New Brunswick and Albert was unable to find them. The plaintiff Albert, therefore, on March 31, 1945, made in good faith a settlement with the administratrix of the Pierre Langdo estate for $2500. This pending action by Maxime Albert against the defendant Casualty Company is brought to recover the amount of $2500, paid in settlement, with interest.

Exceptions.

At the close of the evidence the defendant company moved for a directed verdict for the reasons (1) that it claimed Pierre Langdo was an employee of the plaintiff at the time he was injured, and under the terms of the policy an employee was not covered, and also (2) that the policy prohibited settlement without consent of the company, or without judgment after actual trial. The presiding judge denied the motion.

The defendant's motion for a directed verdict was properly denied. By the terms of the policy the defendant agreed to defend in the name of the assured any suit brought against him to recover for personal injury or death, even though such suit was groundless, false or fraudulent, and it...