Bernardi Greater Shows, Inc. v. Boston & Me. R. R.

• Decision Date: 20 June 1940
• Citation: 14 A.2d 1
• Parties: BERNARDI GREATER SHOWS, Inc. v. BOSTON & MAINE R. R.
• Court: New Hampshire Supreme Court

14 A.2d 1

BERNARDI GREATER SHOWS, Inc.

v. BOSTON & MAINE R. R.

Supreme Court of New Hampshire. Strafford.

June 20, 1940.

Transferred from Superior Court, Strafford County; James, Judge.

Action on a case for negligence by Bernardi Greater Shows, Inc., against the Boston & Maine Railroad wherein after an order for judgment was entered the defendant moved for leave to file a bill in equity as an amendment to its answer and the question of the jurisdiction of the Superior Court to grant the motion was transferred to the Supreme Court on plaintiff's motion to dismiss the motion for lack of service.

Defendant's motion denied.

Case, for negligence. The defendant moved for leave to file a bill in equity as an amendment to its answer. The question of the jurisdiction of the Superior Court to grant the motion was transferred without ruling by James, J. The facts appear in the opinion.

George R. Scammon, of Exeter, for plaintiff.

Hughes & Burns, of Dover, and Snow & Peyser, of Rochester, for defendant.

PAGE, Justice.

The defendant carried the plaintiff's show under a special contract by the terms of which the plaintiff agreed to indemnify the defendant for "all claims, damages, costs and demands * * * for any loss or injury * * * which may be sustained to the property of the Show * * * or to the person or property of any of its agents, servants, performers or employees while on or about said road * * * or * * * of any * * * who may come upon said road * * * because of the presence there of the Show * * *."

The plaintiff had a verdict for damages to its property caused by the defendant's negligence. One Williams, who traveled with the show, had a verdict against the defendant for personal injuries. The administratrix of one Padgett had a verdict for his death while riding with the show. Upon the construction that the plaintiff was bound by contract to indemnify the defendant, judgment was ordered for the defendant in the plaintiff's action and judgments were given on the verdicts in the Williams and Padgett actions, though it was said that "the show company is bound to indemnify the Railroad against liability for damages to persons rightfully riding upon the train, and property transported thereon." 89 N.H. 490, 493, 1 A.2d 360, 362.

The defendant paid the Williams and Padgett judgments and later moved in the Superior Court for leave to file a bill in equity asking for a decree that the plaintiff "protect, save harmless and indemnify the defendant" for the judgments in the Williams and Padgett cases and for all loss, cost and damages occasioned to the defendant in the defense thereof and in the defense of the action by the Show. The counsel for the plaintiff was given notice of the motion, but since the plaintiff is...