Merch.s Mut. Cas. Co. v. Manzer

• Decision Date: 07 December 1943
• Citation: 35 A.2d 392
• Parties: MERCHANTS MUT. CASUALTY CO. v. MANZER et al.
• Court: New Hampshire Supreme Court

35 A.2d 392

MERCHANTS MUT. CASUALTY CO.

v.MANZER et al.

Supreme Court of New Hampshire.

Dec. 7, 1943.

Transferred from Superior Court, Merrimack County; Lorimer, Judge.

Petition for a declaratory judgment by Merchants Mutual Casualty Company against Mabel C. Manzer and another, to determine the rights of the parties under an automobile liability insurance policy issued by plaintiff. To findings and rulings in favor of defendants, the plaintiff excepted and the cause was transferred to the Supreme Court.

Exceptions overruled.

Petition, for declaratory judgment. September 12, 1940 petitioner issued to defendant Manzer an automobile liability insurance policy with the following clause: “Exclusions.” “This policy does not apply: *** (e) under coverage A, to bodily injury to or death of any employee of the insured while engaged in the business, other than domestic employment, of the insured.” March 25, 1941 while the defendant Manzer was returning in her automobile from Florida with a Mrs. Howland, her sister-in-law, who had spent the winter in Florida with Mrs. Manzer, after working for Mrs. Manzer in the summer of 1940 at the Farm Kitchen in Hooksett, operated by Mrs. Manzer, an accident happened in Florida, as the result of which Mrs. Howland suffered personal injuries. Mrs. Howland brought an action at law against Mrs. Manzer to recover damages for these personal injuries. The Insurance Company brought this petition for declaratory judgment, claiming it was not obligated to defend the action or pay any verdict that might be recovered therein, on the ground Mrs. Howland was, at the time of the accident, in the employ of Mrs. Manzer and engaged in the latter's business.

The case was submitted on deposition. The Presiding Justice found Mrs. Howland was not employed by Mrs. Manzer, and ruled that petitioner is bound to defend, and is liable on the policy in the event of judgment in favor of Mrs. Howland. To this finding and ruling the petitioner excepted. The case is transferred on petitioner's bill of exceptions allowed by Lorimer, J.

Further facts appear in the opinion.

Murchie & Murchie, of Concord (Alexander Murchie, of Concord, orally), for petitioner.

McLane, Davis & Carleton, of Manchester (Robert P. Bingham, of Manchester, orally), for defendant Howland.

Thorp & Branch, of Manchester (Frederick W. Branch, of Manchester, orally), for defendant Manzer.

BURQUE, Justice.

In addition to the foregoing facts, it might be stated that Mrs. Howland after working for Mrs. Manzer in 1940, went south with Mrs. Manzer, in the latter's automobile, to spend the winter with Mrs. Manzer where the latter had a winter home. Mrs. Howland paid a small portion of the expenses both on the trip south and at the home during the winter. There was no arrangement as to the defrayal of expense on the way back. Mrs. Manzer was taking Mrs. Howland back with her with the understanding on the part of both that Mrs. Howland would work for Mrs. Manzer during the season of 1941, which was due to open May 1, provided Mrs. Howland did not find some more remunerative employment. Mrs. Howland was to stop in New Jersey on her way back, to visit for a couple of weeks, after which she would...