Employers Liability Assur. Corp. v. Tibbetts

• Decision Date: 03 October 1950
• Parties: EMPLOYERS LIABILITY ASSUR. CORPORATION, LIMITED v. TIBBETTS et al.
• Court: New Hampshire Supreme Court

Page 714

75 A.2d 714

96 N.H. 296

EMPLOYERS LIABILITY ASSUR. CORPORATION, LIMITED v. TIBBETTS et al.

Supreme Court of New Hampshire.

Oct. 3, 1950.

Hughes & Burns and Donald R. Bryant, Dover, for plaintiff.

Cooper, Hall & Cooper and John M. Brant, Rochester, for defendants Walker and Soucy.

DUNCAN, Justice.

The plaintiff's petition is brought pursuant to statutory provisions enacted in 1929, Laws 1929, c. 86, providing for such petitions by persons 'claiming a present legal or equitable right or title' against persons 'claiming adversely to such right or title.' R.L. c. 370, § 20. While in practice petitions to determine the rights and duties arising out of automobile liability insurance policies have been tried both by court, Indemnity Ins. Co. v. Cannon, 94 N.H. 319, 52 A.2d 855; Travelers Ins. Co. v. Greenough, 88 N.H. 391, 190 A. 129, 109 A.L.R. 1096, and by jury, American Employers Ins. Co. v. Wentworth, 90 N.H. 112, 5 A.2d 265; Hartford Acc. & Indem. Co. v. Brenner, 92 N.H. 503, 32 A.2d 809, the question of the constitutional right to trial by jury has never been squarely presented. Cf. Ocean Accident & Guarantee Corp. v. Connell, 93 N.H. 77, 35 A.2d 385, 150 A.L.R. 1163. In Faulkner v. Keene, 85 N.H. 147, 155 A. 195, 197, the declaratory judgment act was held to be constitutional. While it was said that the constitutional provision for jury trial 'would seem to be applicable here,' and that if so, 'either [party] might claim the right, save in those exceptional cases, as for example an accounting or a controverted equity, where the right did not exist at common law', it was unnecessary to decide the question, since the defendant made no request for trial by jury.

Article 20th of Part First of the Constitution, so far as now pertinent, provides: 'In all controversies concerning property--all in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practiced, * * * the parties have a right to a trial by jury and this method of procedure shall be held sacred * * *.' In Davis v. Dyer, 62 N.H. 231, 235, this provision was held not to be 'an extension of the right to cases not before within its operation,' but rather 'recognition of an existing right, guaranteeing it as it then stood and was practised.' Accordingly it was held in Hallahan v. Riley, 94 N.H. 338, 53 A.2d 431, that there was no constitutional right to trial by jury of an appeal under the Unemployment Compensation Act. The extent of the right is to be determined by looking to the nature of the case and of the relief sought, Daley v. Kennett, 75 N.H. 536, 540, 78 A. 123, 39 L.R.A.,N.S., 45, and by ascertaining how trial by jury was "used and practiced' before 1784.' Douglas v. United States Fidelity and Guaranty Company, 81 N.H. 371, 374, 127 A. 708, 710, 37 A.L.R. 1477. The argument that the right exists in this case because such a petition was unknown before the Constitution and therefore does not come within the exception of 'cases in which it has been heretofore otherwise used and practiced' cannot be accepted. It does not necessarily follow however that the right may not exist.

While declaratory judgment actions are creatures of statute, they furnish a procedure for adjudicating substantive rights which have long been recognized, including rights determined by jury trial under pre-constitutional practice. The requirement of our statute that such an action be instituted by petition does not make the action an equity proceeding for that reason alone. See Silberman v. McLaughlin, 129 Conn. 273, 276, 27 A.2d 634. In Pacific Indemnity Co. v. McDonald, 9 Cir., 107 F.2d 446, 448, 131 A.L.R. 208, brought under the Federal Declaratory Judgment Act, 28 U.S.C.A. §§ 2201, 2202, an action for a declaratory judgment was said to be 'neither legal nor equitable, but sui generis.' Yet as there recognized the nature of the claim presented by such an action may be legal or equitable, Borchard, Declaratory Judgments, 2d Ed., 400, and the right to trial of such an action by jury is commonly considered to depend upon the nature of the claim or issue presented. See United States Fidelity & Guaranty Co. v. Spring Brook Farm Dairy, 135 Conn. 294, 64 A.2d 39. Issues triable by jury when presented in coercive actions at common law are triable by jury when presented in actions for declaratory relief; and there is common agreement that declaratory actions may not be used to circumvent the right to jury trial. Dickinson v. General Acc. Fire & Life Assur. Corp., 9 Cir., 147 F.2d 396; Borchard, supra, 399 et seq., 652; Annotation 131 A.L.R. 218; Developments-Declaratory Judgments, 62 Harv.L.Review 787, 834-836. While our statute contains no reference to trial by jury, 'yet it is not to be doubted that the usual constitutional provisions for jury trial prevail.' Borchard, op. cit., 401.

The exceptions before us are those of parties who are plaintiffs in pending law actions against the assured and the operator of the automobile described in the policy. The motion denied by the Court was theirs alone. No trial by jury was sought by Tibbetts or by Hill. Any rights of Walker and Soucy against the plaintiff company derive from a contract to which they are not parties. While by statute, R.L. c. 122, § 16, they have rights against the plaintiff to the extent that liability for the accident in question is covered by the insurance, 'the Legislature has not * * * prescribed the form of action by which the judgment creditor may enforce his right against the insurer,' and the remedy is in equity. Bosse v. Wolverine Insurance Co., 88 N.H. 98, 101, 184 A. 359, 361.

It is argued that the principles announced in the Bosse case are controlling here. Judgment creditors in enforcement...