Bean v. Mercantile Ins. Co. Of America., 3634.
| Decision Date | 02 July 1947 |
| Docket Number | No. 3634.,3634. |
| Citation | 54 A.2d 149 |
| Parties | BEAN v. MERCANTILE INS. CO. OF AMERICA. |
| Court | New Hampshire Supreme Court |
OPINION TEXT STARTS HERE
Transferred from Superior Court, Grafton County; Goodnow, Judge.
Assumpsit by Norman M. Bean against Mercantile Insurance Company of America on Policy of fire insurance. On defendant's exceptions, reserved and transferred.
Exceptions overruled.
Assumpsit upon a policy of fire insurance covering the plaintiff's camp and contents which were totally destroyed by fire on the night of April 4, 1935.
The defendant denied liability on two grounds. First, that the plaintiff had set the fire for the purpose of collecting the insurance. Second, that he failed to comply with P. L. 1926, c. 276, § 9, which provides: ‘In case of loss or damage of property insured, the party insured shall give notice thereof, in writing, to the secretary, a director or an agent of the company, within thirty days.’
It appears that the plaintiff was committed to the New Hampshire State Hospital as insane on April 6, 1935, and discharged on August 16, 1935. The plaintiff, through his attorney, sent a written notice of the loss to the defendant's agent on August 29, 1935. The Court ruled and instructed the jury that the plaintiff's failure to comply with the statutory requirement did not bar his action if they should find that he only recovered his sanity within the thirty days prior to August 29, 1935, when the notice above referred to was sent.
The Court also submitted to the jury the question of whether the plaintiff set fire to the camp while insane. The defendant excepted to the ruling and instructions and also to the denial of its motion for a directed verdict.
Reversed and transferred by Goodnow, J.
Pike & Aldrich, of Lisbon (George W. Pike, of Lisbon, orally), for plaintiff.
Thorp & Branch, of Manchester, (Frederick W. Branch, of Manchester, orally), for defendant.
The defendant's first contention that there was no evidence to warrant submission to the jury of the question whether the plaintiff recovered his sanity within the thirty days prior to August 29, 1935, must be overruled. This issue has been passed on unfavorably to the defendant by this court at a prior trial of the same case, involving the same issue, in which another defendant, Philadelphia Fire and Marine Insurance Company, was joined. See Bean v. Philadelphia Fire & Marine Insurance Company, 88 N.H. 416, 190 A. 131.
A careful comparison of the plaintiff's evidence in both instances indicates that it was more favorable to the plaintiff at the last trial than at the former, and we have no hesitation in holding this issue was properly submitted to the jury.
The defendant's next exception that the Court erred in allowing the jury to pass upon the question of whether the plaintiff set fire to the premises while insane must also be overruled. There was substantial evidence to the effect that the plaintiff was insane at the time in question. Harry W. Perkins, a witness called by the plaintiff, testified that Bean was insane in 1934, before the fire, and also in December 1935, a few months afterward. Dr. J. M. Page, another of the plaintiff's witnesses who saw him two days after the fire, said he was insane then and that his condition was substantially the same at that time as when he saw him on the night of the fire. This evidence, coupled with other credible testimony as to the plaintiff's extraordinary actions, both before and immediately after the fire, are clearly sufficient for submission of the question to the jury.
The defendant finally contends that the plaintiff, having elected to stand on his claim that he did not set the fire, is bound by it under the doctrine of Harlow v. Leclair, 82 N.H. 506, 136 A. 128, 50 A.L.R. 973, and therefore is not entitled to have the jury pass on the question as to whether he set it while insane. The defendant further states that in any event this is an attempt to defrand the company which bars the plaintiff from recovery under the decisions of Saidel v. Union Assur. Society, 84 N.H. 232, 149...
To continue reading
Request your trial
-
Baker v. Commercial Union Ins. Co.
...a fraudulent intent. See Hier v. Farmers Mut. Fire Ins. Co., 104 Mont. 471, 484, 67 P.2d 831 (1937); Bean v. Mercantile Ins. Co. of America, 94 N.H. 342, 344-345, 54 A.2d 149 (1947); Ruvolo v. American Cas. Co., 39 N.J. 490, 496-497, 189 A.2d 204 (1963); Showalter v. Mutual Fire Ins. Co., 3......
-
LePage v. St. Johnsbury Trucking Co.
...injury should not have prevented seasonable pleading. Under our practice inconsistent defenses might be pleaded, Bean v. Mercantile Insurance Company, 94 N.H. 342, 54 A.2d 149; True v. Huntoon, 54 N.H. 121, and the usual form of plea of the general issue with brief statement of justificatio......
-
State v. Ellard.
...his objection at the trial is precluded from relying upon other reasons, though no valid ones appear to exist. Bean v. Mercantile Ins. Company, 94 N.H. 342, 344, 54 A.2d 149 and cases cited, State v. Belisle, 79 N.H. 444, 111 A. 316. The accused vigorously maintains that his constitutional ......
-
MacLeod v. Chalet Susse Intern., Inc.
...in the fifty-odd years since its authorship. See, e. g., Griffin v. Theriault, 107 N.H. 411, 223 A.2d 655 (1966); Bean v. Insurance Co., 94 N.H. 342, 54 A.2d 149 (1947); Frye v. Yasi, 327 Mass. 724, 101 N.E.2d 128 (1951). See also 9 J. Wigmore on Evidence § 2594a, at 601 (3d ed. 1940). We h......