Lumbermens Mut. Cas. Co. v. Yeroyan

• Decision Date: 04 April 1939
• Citation: 5 A.2d 726
• Parties: LUMBERMENS MUT. CASUALTY CO. v. YEROYAN et al.
• Court: New Hampshire Supreme Court

5 A.2d 726

LUMBERMENS MUT. CASUALTY CO.

v. YEROYAN et al.

Supreme Court of New Hampshire. Rockingham.

April 4, 1939.

Transferred from Superior Court, Rockingham County; Connor, Judge.

Proceeding by the Lumbermens Mutual Casualty Company against Karekin Yeroyan and Eugene D. Duncan for a declaratory judgment determining the parties' rights under a motor vehicle liability policy. Plaintiff's motion to strike out part of defendant Duncan's answer was granted, subject to exception, and the issue of coverage on the facts reported was transferred without ruling.

Judgment for plaintiff.

Petition, for a declaratory judgment, to determine the rights of the parties under the terms of a motor vehicle liability policy issued by the plaintiff to the defendant Eugene D. Duncan. The reserved case contains the following statement of facts:

"On or about January 1, 1934, the petitioner issued a policy of liability insurance to the defendant Duncan whereby the petitioner agreed [in accordance with the requirements of Laws 1927, c. 54] to insure said Duncan against liability for bodily injuries sustained by others as a result of the operation of the insured vehicle. The petitioner's liability was limited to $5,000 for bodily injuries to one person and $10,000 for bodily injuries to more than one person resulting from one accident.

"On July 30, 1934 while the said Duncan was operating his motor vehicle, one Mary Yeroyan, wife of the defendant Karekin Yeroyan sustained bodily injuries.

"Suit was instituted by said Mary Yeroyan against said Duncan and judgment of $7,500 recovered.

"On October 1, 1936, the petitioner paid to the said Mary Yeroyan the sum of $5,000 plus interest and costs; the said Duncan with Mary Yeroyan as a party in interest has brought suit against the company to recover the balance due upon the judgment, claiming that the company was negligent in not making a settlement of this suit, together with the husband's claim prior to trial, for $4,500.

"Suit is now brought by the defendant Karekin Yeroyan [by writ dated September 20, 1937] to recover for loss of consortium as a result of the bodily injuries sustained by his wife, and the said Karekin Yeroyan seeks to hold the petitioner liable for any judgment recovered in the law action."

The plaintiff moved the Court to strike out that part of the defendant Duncan's answer in which he claimed that coverage extended to any damages that might be recovered in the action for negligence. This motion was granted subject to exception. The "issue of coverage" on the facts reported was transferred by Connor, J., without a ruling.

Devine & Tobin, of Manchester, for plaintiff.

William H. Sleeper, of Exeter, and Frederick J. Grady, of Derry, for defendants.

MARBLE, Justice.

The obligation of the plaintiff as stated in the body of the policy is, so far as here material, to pay all sums which the assured shall become obligated to pay by reason of the liability imposed upon him by law for damages accidentally suffered by any person on account of bodily injuries, "including loss of services in consequence of such injuries." The obligation prescribed by Laws 1927, c. 54, is substantially identical with this policy provision, since the preposition "for" in the phrase "liability to pay damages to others for * * * bodily injuries" (Laws 1927, c. 54, § 1, cl. 2) is synonymous with the phrase "on account of". See Cormier v. Hudson, 284 Mass. 231, 235, 187 N.E. 625; 2 Words and Phrases, Fourth Series, 92.

While the deprivation of those marital rights comprehensively termed consortium (see Guevin v. Railway, 78 N.H. 289, 99...