Laporte v. Houle
| Decision Date | 07 February 1939 |
| Docket Number | No. 2987.,2987. |
| Citation | 4 A.2d 649 |
| Parties | LAPORTE v. HOULE et al. SAME v. DOHERTY et al. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Rockingham County; James, Judge.
Two actions of debt on judgments commenced by trustee process by Violet Ricard Laporte against Frank J. Houle and trustee, and against William Doherty and trustee. Case transferred on exceptions to the granting of the trustee's motion for nonsuit at the conclusion of plaintiff's evidence.
Exceptions overruled.
Two actions of debt, on judgments, commenced by trustee process. In 1931 the plaintiff (then Violet Ricard—she has since married) brought an action on the case for negligence against the defendant Houle, another against the defendant Doherty, and a third against the Pollard Auto Company to recover for personal injuries sustained by her as the result of an automobile accident. The cases were tried together by jury with verdicts for the plaintiff in all three actions. There was judgment on the verdict in the action against Houle. The other cases were transferred to this court on exceptions. 435 Briefs & Cases, 65. The verdict in the suit against the Pollard Auto Company was here set aside and judgment ordered for the company. At the same time, Doherty's exception to the denial of his motion for a directed verdict was denied and judgment ordered against him. Ricard v. Pollard Auto Company, 86 N.H. 433, 169 A. 876. The judgments in the Doherty and Houle cases remaining unsatisfied, the plaintiff brought the present actions and summoned the Great American Indemnity Company as trustee.
At the time the plaintiff received her injuries the Pollard Auto Company held a motor vehicle liability policy issued by the Great American Indemnity Company extending coverage to "any person responsible for the operation of the insured's motor vehicle * * * with his express or implied consent." Laws 1927, c. 54.
There was a trial by jury on the question of the trustee's liability, and at the conclusion of the plaintiff's evidence the trustee's motion for a nonsuit was granted subject to the plaintiff's exception. The issues raised were (1) whether the driver of the automobile in which the plaintiff was riding at the time of the accident was operating it with the express or implied consent of the Pollard Auto Company, and (2) whether the Great American Indemnity Company was estopped to deny liability because it had conducted the defense of the original actions. Further facts are stated in the opinion. Transferred by James, J.
Paul J. Doyle, of Manchester, for plaintiff.
Warren, Wilson, McLaughlin & Wiggin, of Manchester, for trustee.
The plaintiff, when she received her injury, was a passenger in a car owned by the Pollard Auto Company and driven by the defendant Houle. Doherty, who had the car in his possession, was employed by the Pollard Auto Company as an automobile salesman. On the evening of the accident he met Houle and they agreed that Houle should take the car, go and get the plaintiff and another girl, and then pick up Doherty. The accident occurred while all four were occupants of the car and while they were on their way to Manchester to attend a dance.
The question of the permission given Doherty by his employer to make personal use of the car was not a material issue in the actions for negligence. Sauriolle v. O'Gorman, 86 N.H. 39, 50, 163 A. 717. At the trial of those actions Doherty testified that he was required by a rule of his employer to return the car to the Pollard company's garage in Nashua at eight o'clock each evening, and that his authority to permit others to drive the car was limited to prospective purchasers. At the trial of the present controversy he testified that he knew of no rule that forbade him to allow anyone except a prospective purchaser to operate the car and that the rule requiring the return of the car at eight o'clock was made after the accident.
When a transcript of his former testimony was called to his attention, he made no attempt to explain his contradictory statements but merely said that he did not remember. Indeed, this answer occurs nearly fifty times in the course of his examination. In reply, however, to an inquiry from the Presiding Justice he stated that...
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