Clapperton v. U.S. Fidelity & Guaranty Co.

• Decision Date: 03 November 1952
• Citation: 92 A.2d 336,148 Me. 257
• Parties: CLAPPERTON v. UNITED STATES FIDELITY & GUARANTY CO. et al.
• Court: Maine Supreme Court

Page 336

92 A.2d 336

148 Me. 257

CLAPPERTON v. UNITED STATES FIDELITY & GUARANTY CO. et al.

Supreme Judicial Court of Maine.

Nov. 3, 1952.

James E. Glover and Joly & Marden, Waterville, for plaintiff.

Robinson, Richardson & Leddy, Portland, for defendant U. S. F. & G. Co.

Locke, Campbell, Reid & Hebert, Augusta, for Travelers Ind. Co.

Dubord & Dubord, Lewis L. Levine, Waterville, for McLellan et al. specially.

Before THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

MERRILL, Justice.

On exceptions. In this case there was a petition to the Superior Court for a declaratory judgment. By the petition Charles Clapperton, Sr., against whom several actions had been brought to recover damages in the aggregate sum of $162,000 for injuries received in an automobile accident which took place on October 7, 1950, sought to have the court declare his rights under an automobile liability insurance policy issued to him by the United States Fidelity and Guaranty Company. He sought a declaration of 'whether or not the said policy was in full force and effect on the date of said accident, October 7, 1950, and whether or not the said policy remained in full force and effect and is valid and collectible insurance in connection with said accident, in the event that the plaintiffs in the negligence actions (who are the individual respondents herein) as recited in paragraph 5 of this petition should recover judgments against the Petitioner.'

Briefly, the facts were as follows. On September 8, 1950, one William E. Hambleton, an agent of the United States Fidelity and Guaranty Company who had policy writing powers, sold and delivered to the petitioner an automobile liability policy in the usual form with $25,000-$50,000 limits. On September 25, 1950, the company by letter received in due course notified said agent to return the policy for pro rata cancellation. On September 27, 1950, without having notified the petitioner or having cancelled the policy, the agent bound the petitioner in the same limits with the respondent, The Travelers Indemnity Company, of which company he was also an agent. The Travelers accepted the risk and its policy was delivered to the agent on October 7, 1950. On the same day the petitioner was involved in the accident upon which he may be subject to liability to the individual respondents who have brought actions against him to recover damages therefor. Subsequent to the accident, and the agent's knowledge thereof, the Travelers' policy was delivered to the petitioner by the agent. The premiums on both policies were paid and both policies were accepted by the petitioner. The petitioner duly notified both insurance companies of the accident. The United States Fidelity and Guaranty Company denied and still denies liability on the ground that its policy had been duly rescinded by mutual agreement as of its date and was not in effect at the time of the accident. It further claims that the policy of The Travelers Indemnity Company had been substituted therefor prior to the accident.

Later in October, the petitioner, at the request of another representative of the United States Fidelity and Guaranty Company, signed a release purporting to cancel their policy and discharge that company, on being assured by said representative that 'he (the petitioner) had automobile coverage, double coverage--since he was also covered in the Travelers'. The United States Fidelity and Guaranty Company, however, does not rely upon this release as a discharge of liability, but 'only as evidence of ratification by Mr. Clapperton of the act of Mr. Hambleton in placing him in the Travelers as of September 27, 1950.' The Travelers Indemnity Company not only does not deny liability under its policy but in its brief after quoting the above testimony of the representative of the United States Fidelity and Guaranty Company, states: 'That is exactly the position of The Travelers Indemnity Company. That Clapperton on the date of the accident had double coverage, that he was covered in the U. S. F. & G. and also in The Travelers.'

The Justice of the Superior Court found 'that both companies were covering at the time of the accident on October 7, 1950 and any loss arising out of petitioner's liability therefor (as defined in the policies) must be borne equally by the two companies up to the total of the combined coverage but not in excess thereof.' After decree by the single Justice, the United States Fidelity and Guaranty Company filed a bill of exceptions which, after a recital of facts, is as follows:

'After hearing, the Court ruled and decreed, inter alia, as follows:----

'1. 'I find that Petitioner selected the USF & G in the first instance because the agent could write the policy and issue it without delay, and that he did not constitute Hambleton his agent to keep him insured in such companies as the agent might select.'

'2. 'I find that notice of cancellation by USF & G to its agent was not binding upon Petitioner * * *'

'3. 'I find that Hambleton was not acting as Petitioner's agent but was acting as a person engaged in the insurance business feeling a responsibility to a customer and anxious to retain good will and not leave his customer uninsured even for one moment.'

'4. 'That liability had become absolute R.S.1944, Ch. 56, Sec. 261 * * *'.

'5. 'I find that both companies were covering at the time of the accident on October 7, 1950 and any loss arising out of petitioners liability therefor (as defined in the policies) must be borne equally by the two companies up to the total of the combined coverage but not in excess thereof.'

'To all of which rulings the said United States Fidelity and Guaranty Company says that it is aggrieved, and excepts and prays that its exceptions may be allowed.

'The petition, respondents' answers, exhibits, evidence and the Court's decree are hereby incorporated and made a part of this Bill of Exceptions.'

By the foregoing bill of exceptions the respondent, United States Fidelity and Guaranty Company, seeks to attack not only legal conclusions but factual findings made by the Justice of the Superior Court.

The liability, if any, of the respondent, United States Fidelity and Guaranty Company, to the petitioner on its policy of insurance was a legal liability and enforcible by an action at law. The case, therefore, was properly entered upon the law docket of the Superior Court. Maine Broadcasting Co. v. Eastern Trust & Banking Co., 142 Me. 220, 49 A.2d 224, Sears, Roebuck & Co. v. Portland, 144 Me. 250, 68 A.2d 12.

With respect to proceedings under the Uniform Declaratory Judgment Act, R.S.1944, c. 95, §§ 38 to 50, both inclusive, § 44 provides that:

'All orders, judgments, and decrees under the provisions of sections 38 to 50, inclusive, may be reviewed as other orders, judgments, and decrees.'

Under this section of the statute, this case being a decision of a single Justice sitting as a court of law as distinguished from equity, the only procedure to review his findings is by a bill of exceptions.

In all cases at law, when court is held by a single Justice, his opinions, directions, or judgments may be attacked by exceptions. R.S.1944, c. 94, § 14. The apparent modification of this rule that requires a reservation of a right to exceptions in cases heard by the presiding Justice in jury waived cases, Frank v. Mallett, 92 Me. 77, 79, 42 A. 238, has no application to cases heard by the Justice in proceedings to obtain a declaratory judgment. In such cases he is hearing the case not because of a voluntary submission to him by the parties, but as the court designated by statute to hear and decide the same. In such cases it is not necessary to reserve a right to exceptions. Leathers v. Stewart, 108 Me. 96, 79 A. 16.

The directions, judgments, or opinions of a single Justice hearing a case may be attacked only for errors in law. Dunn v. Kelley, 69 Me. 145; Pettengill v. Shoenbar, 84 Me. 104, 24 A. 584; Ayer v. Harris, 125 Me. 249, 132 A. 742.

Exceptions when taken to findings of fact by a single Justice must attack such findings because of, and reach only, errors in law. There is no error in law in a finding of fact by a single Justice unless such fact be found without any evidence to support it. Examples of application of this rule by this Court may be found in cases where we have applied it to the decision of a single Justice hearing a case at law without the intervention of a jury, Ayer v. Harris, supra, to a decree of divorce, Bond v. Bond, 127 Me. 117, 129, 141 A. 833, to the decree of a Justice of the Superior Court sitting as the Supreme Court of Probate, Cotting v. Tilton's Estate, 118 Me. 91, 94, 106 A. 113. The rule has been so uniformly applied by this Court that citation of further authorities is unnecessary.

R.S.1944, c. 94, § 14, and the foregoing legal principles are applicable to proceedings to obtain a review of orders, judgments, and decrees of a Justice made or rendered in proceedings at law to obtain a declaratory judgment. See Sears, Roebuck & Co. v. Portland, 144 Me. 250, 68 A.2d 12.

The sufficiency of bills of exceptions to orders, judgments, and decrees of a Justice in proceedings to obtain a declaratory judgment is determined by the same rules applicable to bills of exceptions to orders, judgments, and decrees of a single Justice in other cases.

This Court has repeatedly and so recently set forth the requirements of bills of exceptions in general, and of bills of exceptions to the findings of a single Justice that no useful purpose would be served by repeating them here. See Mckown v. Powers, 86 Me. 291, 29 A. 1079; Jones v. Jones, 101 Me. 447, 64 A. 815 and cases cited; Bradford v. Davis, 143 Me. 124, 56 A.2d 68; Appeal of Health, 146 Me. 229 79 A.2d 840; Sard v. Sard, 147 Me. 46, 83 A.2d 286.

Measured by the standards set forth in these cases, the respondent's bill of exceptions is woefully insufficient. It fails to point out whether the erroneous...