Md. Cas. Co. v. Lamarre

• Decision Date: 03 January 1928
• Citation: 140 A. 174
• Parties: MARYLAND CASUALTY CO. v. LAMARRE et ux.
• Court: New Hampshire Supreme Court

140 A. 174

MARYLAND CASUALTY CO.

v. LAMARRE et ux.

Supreme Court of New Hampshire. Hillsborough.

Jan. 3, 1928.

Exceptions from Superior Court, Hillsborough County; Young, Judge.

Suit by the Maryland Casualty Company against George Lamarre and wife. Bill dismissed, and plaintiff brings exceptions. Exceptions overruled.

Bill in equity, for the cancellation of an automobile liability policy, to restrain recovery thereon and. to temporarily enjoin further trial of an action at law brought by an injured passenger against the insured; the alleged grounds for equitable relief being conspiracy, fraud, and collusion at the trial of said action. Hearing by the court, and dismissal of the plaintiff's bill.

The policy was issued by the plaintiff company to the defendant George Lamarre, insuring him, inter alia, against loss from liability imposed by law for damages on account of bodily injuries, accidentally suffered or alleged to have been suffered by any person, caused by any automobile owned by the assured while operated by him for private purposes, including "personal pleasure and family use." The defendant Eugenie Lamarre, the wife of the insured, having suffered an injury within the terms of the policy, brought the suit sought to be enjoined. The action was tried by jury and defended by the company, with a verdict for the plaintiff. It appears to be conceded that there was a mistrial.

The issue in equity was submitted upon the bill and answer and a transcript of the evidence in the action at law. Upon consideration thereof the court found the following conduct on the part of the assured: That he encouraged the prosecution of the wife's suit against him; testified at the trial that he drank intoxicating liquor, giving the general impression that he was under its influence at the time of the accident, and that his condition caused or contributed to cause it; admitted his liability, and described his wife's suffering and disability; stated that that he had no property to satisfy a judgment; expressed the hope that his wife would recover a substantial verdict, and his expectation that the insurance company would pay; and conceded that he and his wife were living together as pleasantly as before the accident. The court further found as a fact that:

"There was collusion with respect to the litigation in the sense, and to the extent that, the defendant [George] made it as easy as possible for his wife to recover a verdict against him, assisted in arranging for the attendance of witnesses, and said he would be glad if she got a verdict, knowing that in that event he could not pay, and believing that the insurance company would pay."

The court ruled, as a matter of law:

"That the wife has a right to sue her husband; that the husband as a witness has the right to admit that he was at fault and, therefore, liable."

The court accordingly denied the plaintiff's prayer, and ordered its bill dismissed.

Further facts appear in the opinion. Reserved and transferred upon the plaintiff's exception to the ruling of the court that the prayer of its petition be denied.

Timothy F. O'Connor and Myer Saidel, both of Manchester, for plaintiff.

Banigan & Banigan and Edward W. Banigan, all of Manchester, for defendants.

SNOW, J. No question as to the correctness of the pleadings is raised. There was no evidence of collusion to bring about the accident or to produce the injuries. The contrary is found. The issue presented at the hearing was predicated solely upon the insured's alleged fraudulent conduct as respects the litigation.

By the terms of the policy the company undertook the investigation of...