Merchants Mut. Cas. Co. v. Tuttle

• Decision Date: 31 December 1953
• Citation: 101 A.2d 262,98 N.H. 349
• Parties: MERCHANTS MUT. CAS. CO. v. TUTTLE et al.
• Court: New Hampshire Supreme Court

Page 262

101 A.2d 262

98 N.H. 349

MERCHANTS MUT. CAS. CO. v. TUTTLE et al.

Supreme Court of New Hampshire.

Argued Nov. 3, 1953.

Decided Nov. 30, 1953.

Rehearing Denied Dec. 31, 1953.

Devine & Millimet, Manchester, for plaintiff.

Burns, Calderwood & Bryant and Robert E. Hinchey, Dover, for defendant Lumbermens Mut Cas. Co.

Wyman, Starr, Booth, Wadleigh & Langdell, Manchester, for defendant Roger W. Tuttle.

Sullivan & Gregg and S. Robert Winer, Nashua, for defendant Alma A. daly.

LAMPRON, Justice.

The question of whether the administratrix of the estate of Ferguson can maintain an action of tort for negligence against his fellow employee, Tuttle after having received workmen's compensation for such injuries was raised in the proceedings in the Superior Court and was apparently transferred to this court by the reserved case. Although Merchants raises some question as to whether that issue should be considered at this time 'all the facts are before the Court and justice and convenience seem to require that this phase of the case be disposed of at this time.' Farm Bureau Mutual Automobile Ins. Co. v. Manson, 94 N.H. 389, 392, 54 A.2d 580, 582.

Laws 1947, c. 266, § 12, provides that 'When an injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in some person other than the employer a legal liability to pay damages in respect thereto, the injured employee, in addition to the benefits of this chapter, may obtain damages from or proceed at law against such other person to recover damages * * *.' It is true that some courts have interpreted similar statutes to grant immunity from common law action not only to employers but also to co-employees in the same employment, Caira v. Caira, 296 Mass. 448, 6 N.E.2d 431; Murphy v. Miettinen, 317 Mass. 633, 59 N.E.2d 252, and in some instances to all persons subject to the compensation system. 2 Larson's, Workmen's Compensation Law 181. In our opinion such an interpretation would distort the meaning of 'in some person other than the employer' as used by the Legislature in our Act. In effect it amounts to saying that employer means employee. Id. p. 178. The statute does not say this, § 2, subd. I, and a majority of the courts have held otherwise. Id. p. 171; 58 Am.Jur. 616. Acceptance of compensation has not barred an action at law for negligence on behalf of Ferguson against his fellow employee Tuttle to recover damages for the same injuries. See Stacy v. F. M. Hoyt Shoe Company, 83 N.H. 281, 286, 141 A. 467; Holland v. Morley Button Company, 83 N.H. 482, 485, 145 A. 142; McCullough v. John B. Varick Company, 90 N.H. 409, 412, 10 A.2d 245.

The truck involved in the accident was owned by Theodore G. Caughey. He had used it to drive to work at the Souhegan Mills for about a year. It was kept in the mill yard during the day. The mill had no truck and it was a convenience for it to use Caughey's truck to clean up the yard. 'Q. You told them any time they wanted to use that truck as a convenience to them, you were willing for them to use it, didn't you? A. Almost like that. I don't know whether it was as formal as that. It was more or less of a practice rather than a formal permission. Sometimes it would be used 'a couple times in one day' or 'it might be a couple of months before they used it again.'' He never made any objection to anybody using the truck. It was being used to clean the yard at the time of the accident. The Court's finding that the truck was then being operated 'with the permission either express of implied of the owner Caughey' was amply warranted by the evidence.

Consequently as regards the minimum limits of liability provided for in R.L., c. 122, § 1, VII, Caughey's conduct in giving notice of the accident to his insurer, Lumbermens, has no legal effect in this particular proceeding. This was the interpretation placed by our court on Laws 1937, c. 161, § 17, subd. III, the predecessor of the present R.L., c. 122 § 16, III, Laws 1941, c. 198, § 1. Merchants Mutual Casualty Co. v. Egan, 91 N.H. 368, 370, 20 A.2d 480, 135 A.L.R. 745; Continental Ins. Co. v. Charest, 91 N.H. 378, 380, 20 A.2d 477. This would be true a fortiori under the latter statute as interpreted by our court in Phoenix Ind. Co. v. Conwell, 94 N.H. 146, 47 A.2d 827, 1 A.L.R.2d 819. For reasons which appear later in the opinion there is no need to consider at this point its legal significance on the limits of liability in excess of the statutory minimum. Continental Ins. Co. v. Charest, supra, 91 N.H. 379, 20 A.2d 477.

We turn next to the legal effect of paragraph III of Lumbermens policy entitled 'Definition of Insured.' It provides that 'The insurance with respect to any person or organization other than the named insured does not apply: * * * (b) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer.'

It is our opinion that as to the minimum limits of liability required by R.L., c. 122, § 1, VII, the above provision of the policy is ineffective to defeat or avoid coverage insofar as the injured person is concerned. This policy had attached to it a 'New Hampshire Statutory Motor Vehicle Liability Policy Endorsement' in which it was agreed 'That the policy as amended by this endorsement is a Motor Vehicle Liability Policy as defined in Chapter 122 Revised Laws of the State of New Hampshire as amended, and all policy provisions required by said chapter are hereby expressly incorporated in the policy by reference.' A 'Motor Vehicle Liability Policy' is defined in R.L., c. 122, § 1, VII, as a policy which provides '(a) indemnity for or protection to the insured and any person responsible to him for the operation of the insured's motor vehicle * * * against loss by reason of the liability to pay damages to others for * * * bodily injuries, including death at any time resulting therefrom, accidentally sustained * * * by any person other than the insured, or employees of the insured actually operating the motor vehicle or of such other person responsible as aforesaid who are entitled to...