Indem. Ins. Co. Of North America v. Cannon, 3643.

• Decision Date: 03 June 1947
• Docket Number: No. 3643.,3643.
• Parties: INDEMNITY INS. CO. OF NORTH AMERICA v. CANNON et al.
• Court: New Hampshire Supreme Court

52 A.2d 855

INDEMNITY INS. CO. OF NORTH AMERICA

v.CANNON et al.

No. 3643.

Supreme Court of New Hampshire.

May 6, 1947.

Rehearing Denied June 3, 1947.

Exceptions from Superior Court, Merrimack County; Lorimer, Chief Judge.

Petition by Indemnity Insurance Company of North America against Henry B. Cannon, Jr., and others for a declaratory judgment as to whether the petitioner should defend two actions. The petition was dismissed, and petitioner brings exceptions.

Exception overruled, and judgment for defendants.

Petition for a declaratory judgment under the provisions of R.L. c. 370, § 20, to determine whether the plaintiff is bound to defend two actions at law, the first brought by Priscilla Hutchinson through her father and next friend Willis C. Hutchinson against the defendant McFarland, and the second brought by the defendants Willis C. Hutchinson and Emma C. Hutchinson against the said McFarland, by virtue of a policy of liability insurance issued to the defendant Cannon. Trial by Court (Lorimer, C.J.), who made the following order: ‘In the above entitled action, petition dismissed-coverage included use of auto by McFarland-Petitioner has not waived right to avoid liability under policy-petitioner excepts.'

The evidence showed that on June 16, 1937, Mrs. Cannon, wife of the defendant Cannon, drove his car into the city of Concord for the purpose of doing some shopping, and while there, went to the garage of the defendant Mudgett and ‘asked Mr. McFarland to take her out to the school (St. Paul's School) or to Dr. Russell's right near the school and bring the car back and have it greased.’ Mr. Cannon usually had his repair work done at Mudgett's garage and the arrangement which Mrs. Cannon made with McFarland was a customary one. ‘Sometimes we took the car in and they brought us back: sometimes somebody else would come in with the car and leave the car there.’ On the way back to the garage McFarland was involved in an accident in which the defendant Hutchinsons were injured.

The policy in question contained the following provision:

‘III. Definition of ‘Insured.’ The unqualified word insured * * * includes not only the named insured, but also any person while using the automobile and any person or organization legally responsible for the use thereof * * * provided * * * that the actual use is with the permission of the named insured. The provisions of this paragraph do not apply * * * (c) to any person or organization or to any agent or employee thereof operating an automobile repair shop, public garage, sales agency, service station or public parking place with respect to any accident arising out of the operation thereof.'

On July 17, 1936, the effective date of the policy, Chapter 54 of the Laws of 1927, was in effect, and attached to the policy was a New Hampshire statutory motor vehicle endorsement which designated the policy as ‘a motor vehicle liability policy as defined in Chapter...