Hoyt v. Mass. Bonding & Ins. Co.

Decision Date04 January 1921
Docket NumberNo. 1708.,1708.
Citation113 A. 219
PartiesHOYT v. MASSACHUSETTS BONDING & INS. CO. et al.
CourtNew Hampshire Supreme Court

Exceptions from Superior Court; Hillsborough County.

Actions by Flora Hoyt against the Massachusetts Bonding & Insurance Company and another. Nonsuit was ordered in the first action, to which plaintiff excepted. In the second action, defendants' plea in abatement being overruled, verdict was found for plaintiff; defendants excepting. In the first suit, judgment ordered for defendants; in the second, judgment ordered for plaintiff.

Action to recover an indemnity payable to the plaintiff upon the death by accident of her husband, Edward E. Hoyt, who was killed in a railroad accident March 3, 1916, upon a policy originally issued August 18, 1908, by the United States Health & Accident Insurance Company. Some time in 1914 the policy was assigned by the insurer to the defendant Bonding & Insurance Company, who assumed and subsequently renewed the same from time to time. The policy provided for the payment of $1,000 in case of accidental death, which sum had been increased 50 per cent. in accordance with the terms of the policy by its five consecutive full year's renewal. The policy also provided for double indemnity in case of injury causing death—

"sustained by the assured while riding as a passenger in or upon a * * * public passenger conveyance provided by a common carrier for the regular transportation of passengers, and such injury is due directly to an accident happening to such * * * conveyance."

Proofs of loss were duly filed March 14, 1916, in which the plaintiff claimed $3,000. April 13, 1916, the defendants' local agent, under express authority from the defendants, wrote the plaintiff's attorney that the defendants denied all liability for any amount in excess of $375, and tendered a draft for $750 by way of compromise and to avoid litigation, as the company were willing and anxious to make an equitable adjustment, but reserved all rights and defenses in case the tender was refused. This was done, and suit was brought April 14. 1916. The defendants filed no pleadings, but when the plaintiff rested at the trial before the court, Kivel, J., April 3, 1918, they moved for a nonsuit upon the ground that the action was prematurely brought.

The policy required proofs of loss to be filed within two months from date of death and further provided, "no action at law shall be brought before three months nor after six months from the date on which such proofs were required to be furnished. * * * Any limitations in this policy contrary to the state laws governing same are hereby extended to the minimum periods provided by such laws." The court ruled as matter of law that the objection could be taken under the general issue, and ordered a nonsuit, and the plaintiff excepted. On the same day, April 3, 1918, the plaintiff brought suit which was entered at the May term, 1918, in which the defendant seasonably filed a plea in abatement, averring another suit pending for the same cause of action; the exceptions to the order of nonsuit not having been withdrawn. The plea was overruled, and the defendants excepted. At the close of the evidence the defendants moved to dismiss the action because it was brought more than six months after the date on which the policy required proof of claim to be furnished. The motion was denied, and the defendants excepted. The policy provided:

"If the assured sustains injury, fatal or otherwise, after having changed his occupation to one classed by the company as more hazardous than that herein stated, or while doing any act or thing pertaining to any occupation so classed, then this insurance shall not be forfeited, but the liability of the company shall be only such proportion of the principal sum or other indemnity as the premium paid by the assured will purchase at the rate fixed by the company for such more hazardous occupation."

Hoyt was classified as a "B" risk in the policy, his occupation having been given as "contractor and builder, supervising only." For a number of years prior to his death to the knowledge of the agent collecting the premium he had been engaged in buying and selling horses, making frequent trips to the West, where he purchased them. March 1, 1916, the New York Central Railroad over which his horses were shipped by the American Express Company issued to him as a means of transportation a caretaker's certificate which entitled him to transportation—

"in car with horses or in coach or smoking car from East St. Louis to Boston, Mass., * * * except that if train did not carry coach or smoking car, transportation will be furnished on last preceding or first following train."

The train on which Hoyt's horses were shipped consisted of cars containing horses, express matter, empty refrigerator cars, and one steel smoking coach, which was the rear car in which he was a passenger, and was the third section of a regular passenger train in charge of a passenger conductor and full passenger crew, and ran on a track customarily used for passenger traffic. While Hoyt rode on a caretaker's certificate he had nothing to do with the care or management of the horses. He was killed in a rear-end collision from a following freight train. The company claimed that Hoyt had changed his occupation to one classed as more hazardous than that stated in the policy, in which it was liable to pay only $375, and was not liable for the double indemnity. By the classification in force when Hoyt was insured, and the only one of which he had notice, the occupation of "horse dealer, not trainer or handler," was classed as a "B" risk, as was that under which he was insured as a contractor and builder, while that of "horse dealer, shipping and handling in transit," was classed as a more hazardous occupation, denominated "X."

By agreement the evidence was considered in both actions. The court found a verdict for $3,000, and that, while the order of nonsuit was made as matter of law, if the court had any discretion as to the defendants' rights as to their pleas in either case, justice requires that the plaintiff have judgment.

Irving E. Forbes and Taggart, Tuttle, Wyman & Starr, all of Manchester, for plaintiff.

John O'Neill, of Manchester, for defendants.

PARSONS, C. J. The grounds upon which the plea of former action pending was overruled in the second suit are not stated. If the court found the averment that both actions were for the same cause of action was not sustained in fact, the law required the overruling of the plea. Perham v. Lane, 76, N. H. 580, 83 Atl. 805. The policy contains no stipulation as to when after proof of loss payment will be made. If, as the defendants claim, the objection is open to them under the general issue without setting up the defense by plea or brief statement, it is because the stipulation postponing the bringing of the suit means that they are not in default until the expiration of the three months. The cause of action set up in the first suit is a default by the defendants before April 14, 1916. The defendants' answer is that they were not then in default. The charge in the second suit is of a default before April 3, 1918. The plaintiff fails in the first suit as the defendants claim because of the nonexistence of a cause of action when the suit was brought, which they concede subsequently existed at some time before the second suit was brought. It is a mathematical axiom that something and nothing are not equal; in legal language, are not the same. The law does not ordinarily compel parties to perform their contracts, hut gives the aggrieved party damages for the failure to perform. Wiggin v. Manchester, 72 N. H. 576, 581, 58 Atl. 522. In a suit on a note, policy, or other contract the written document is not the cause of action but a part of the...

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  • Bowling v. Aetna Life Ins. Co.
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    ...it without remedy. It follows that justice does not require the second action to be dismissed as vexatious. Hoyt v. Massachusetts Bonding & Insurance Co., 80 N.H. 27, 31, 113 A. 219; Dolber v. Young, 81 N.H. 157, 123 A. 218. This conclusion is consistent with the general principle that a pr......
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