Hildreth v. Bergeron

• Decision Date: 31 March 1970
• Docket Number: No. 5976,5976
• Parties: Frederick HILDRETH, individually and formerly d/b/a Rochester Food Outlet and Hildreth's Superette Discount Store, v. Lucien E. BERGERON, individually and d/b/a Lucien Bergeron Insurance Agency.
• Court: New Hampshire Supreme Court

Page 664

263 A.2d 664

110 N.H. 197

Frederick HILDRETH, individually and formerly d/b/a Rochester Food Outlet and Hildreth's Superette Discount Store, v. Lucien E. BERGERON, individually and d/b/a Lucien Bergeron Insurance Agency.

No. 5976.

Supreme Court of New Hampshire.

March 31, 1970.

Ovila J. Gregoire, Dover and Upton, Sanders & Upton and Ernest T. Smith, III, Concord, for plaintiff.

Calderwood, Silverman & Ouellette and William B. Cullimore, Dover, for defendant.

GRIFFITH, Justice.

Defendant's exception to the denial of his motion to dismiss on the pleadings was reserved and transferred by Leahy, C.J. In determining this issue all facts properly pleaded by the plaintiff and all reasonable inferences therefrom are considered as true. Aldrich v. Charles Beauregard & Sons, 105 N.H. 330, 200 A.2d 14.

The plaintiff claims that the defendant agreed to provide insurance to cover all contingencies or accidents which might occur during the operation of his retail grocery business. Paula Gilbert was injured by the explosion of a Coca-Cola bottle purchased at the plaintiff's store and brought suit against the plaintiff on January 19, 1965 for the injuries she sustained. The plaintiff was advised by the defendant that his insurance policies did not cover the accident and he was forced to defend the action himself.

Plaintiff's action was brought on September 19, 1967 and subsequently on June 4, 1968 Paula Gilbert recovered a verdict of $1,000 against the plaintiff herein. On the same day plaintiff recovered a verdict of $1,000 in his suit against his suppliers Armand St. Hilaire and Coca-Cola Bottling Co. As a result of the second verdict the claim of Paula Gilbert against the plaintiff was fully satisfied by his suppliers.

The defendant moved to dismiss on the ground that whatever damages plaintiff might have recovered against him had already been paid to plaintiff in his recovery against St. Hilaire and Coca-Cola. Plaintiff in answer thereto stated that because of defendant's failure to provide insurance which would have satisfied the expenses of defending the Gilbert action and paid any judgment recovered, plaintiff incurred counsel fees in the sum of $1,310.20 to defend the Gilbert action and to initiate and pursue the action against St. Hilaire and Coca-Cola which produced the $1000 with which the Gilbert verdict was paid. The fact that these verdicts arose after this action was brought does not prevent their consideration here on the issue of damages. Mansfield v. Federal Services Finance Corp., 99 N.H. 352, 111 A.2d 322.

We agree that the damages claimed for breach of the alleged contract are mitigated to the extent the Gilbert verdict has been paid. The 'collateral source rule' relied upon by the plaintiff is not applicable here. If the alleged contract had been fully performed by the defendant the insurer could have recovered from the suppliers as did the plaintiff. It follows that the source was not 'collateral' and had the plaintiff not pursued the source his damages might have been less than the verdict against him because he failed to make a reasonable effort to mitigate them. Coos Lumber Co. v. Builders Lumber & Supply Co., 104 N.H. 404, 407, 188 A.2d 330, Restatement, Contracts, s. 336.

Plaintiff's damages in this case are not limited to the verdict against him in the Gilbert suit. If the alleged contract was breached he is entitled to all expenses resulting from the breach including attorney's fees both in defending the...