Am. Motorists Ins. Co. v. Rush

• Decision Date: 02 February 1937
• Citation: 190 A. 432
• Parties: AMERICAN MOTORISTS INS. CO. v. RUSH. BRACKETT v. SAME (two cases).
• Court: New Hampshire Supreme Court

190 A. 432

AMERICAN MOTORISTS INS. CO.

v. RUSH.

BRACKETT

v. SAME (two cases).

Supreme Court of New Hampshire. Merrimack.

Feb. 2, 1937.

Exceptions from Superior Court, Merrimack County; Lorimer, Judge.

Petition for a declaratory judgment by the American Motorists Insurance Company against Albert Rush and others, and actions of the case for negligence by George E. Brackett and Mary E. Brackett against Albert Rush. Judgment for plaintiffs, and defendant brings exceptions. Case transferred.

Exceptions overruled. Judgments on the verdicts.

Petition for a declaratory judgment, to determine the rights of the parties under an automobile liability insurance policy issued by the plaintiff company to Albert Rush (hereinafter called the defendant), and two actions of case, for negligence, to recover for personal injuries sustained by George E. Brackett (hereinafter called the plaintiff) and his wife, Mary E. Brackett, in an automobile accident, which occurred at Henniker on July 18, 1933. At the time of the accident the defendant, who was chief of police of Henniker, was pursuing the plaintiff for an alleged violation of a traffic regulation.

The policy in question contained two indorsements, one adopting the provisions of Laws 1927, c. 54, the other reading as follows: "In consideration of the premium at which this policy is written, it is expressly understood and agreed that the automobile insured under this policy is not and will not be used for emergency purposes in connection with the Assured's business or occupation."

The court ruled, subject to the Insurance Company's exception, that it was the duty of the company "to defend Rush in the Brackett actions." The Presiding Justice having refused to enjoin trial of the cases pending a transfer to this court of the exception to his ruling, the Insurance Company, without waiving any of its rights "to contest any question of coverage under the policy," appeared by counsel and defended the actions. There was a trial by jury with verdicts for the plaintiffs. The defendant excepted in each case to the denial of his motion for a directed verdict and to certain of the court's instructions to the jury.

Murchie, Murchie & Blandin and Alexander Murchie, all of Concord, for American Motorists Ins. Co. and Albert Rush.

Robert W. Upton and Laurence I. Duncan, both of Concord, for George E. Brackett and Mary E. Brackett.

MARBLE, Justice.

Since there is no suggestion that the Insurance Company was harmed by the denial of its motion to enjoin trial of the Brackett actions, the exception to the denial of this motion is overruled. It is the proper as well as the convenient procedure, however, to determine definitely by a transfer to this court the preliminary question of coverage before trial of suits against an insured. American Motorists Ins. Co. v. Central Garage, 86 N.H. 362, 364, 169 A. 121; Sauriolle v. O'Gorman, 86 N.H. 39, 49, 163 A. 717. See, also, Gibbs v. Lumbermen's Mut. Casualty Co., 87 N.H. 19, 20, 173 A. 372; Howe v. Howe, 87 N.H. 338, 339, 179 A. 362; Maryland Casualty Co. v. Martin, 88 N.H. —, 189 A. 162.

The tort actions will be considered first. According to the plaintiff's testimony, he was driving his Dodge car on the day of the accident from his father's home in Georges Mills to his own home in Watertown, Mass. His wife and a guest were seated in front with him, his son was asleep on the back seat, and a baby was lying in a hammock suspended from the roof of the automobile between the front and back seats. When he reached Henniker he stopped at the junction of the trunk lines there, where a stop sign had been installed, then proceeded straight across the square and down route 114 toward Manchester. His speed was approximately 20 miles an hour.

The defendant, who happened to be in the square at the time, claiming that the plaintiff did not stop at the sign or heed a signal to stop, started in pursuit. Driving at a speed of 40 or 45 miles an hour, he overtook the plaintiff within a short distance, blew his whistle, and then extended his right arm out the right window of his car, steering meanwhile with his left hand. He then "twisted his wheel" and "cut right in front of" the plaintiff "quick." There was a line of telephone poles on the plaintiff's right between the sidewalk and the road and a low retaining wall at the right of the sidewalk in attempting to avoid a collision the plaintiff ran into one of the telephone poles, occasioning the injuries complained of.

This evidence fully justified a finding that the defendant was negligent and that his negligence was the legal cause of the accident. The defendant claims immunity, however, on the ground that in doing what he did he was acting in good faith and within the scope of his authority as an officer.

It is the general rule that police officers, in making arrests, are liable for injuries negligently inflicted on the person arrested as well as on innocent third persons. Cases on the subject are collected in Manwaring v. Geisler, 191 Ky. 532, 230 S.W. 918, 18 A.L.R. 197, and Geros v. Harries, 65 Utah, 227, 236 P. 220, 39 A.L.R. 1306. This rule is in harmony with the trend of our decisions. The case of Whidden v. Cheever, 69 N.H. 142, 44 A. 908, 909, 76 Am.St.Rep. 154, on which the defendant relies, merely holds that a health...