Montello Shoe Co., Inc. v. Suncook Indus., Inc.
| Decision Date | 02 June 1942 |
| Citation | 26 A.2d 676 |
| Parties | MONTELLO SHOE CO., Inc. v. SUNCOOK INDUSTRIES, Inc. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Merrimack County; Young, Judge.
Action by Montello Shoe Company, Inc., against Suncook Industries, Inc., for damages from sprinkler leakage. Case transferred from the trial term without ruling.
Case discharged.
Action, by a tenant against a landlord for damages from sprinkler leakage.
The plaintiff has received payment of its damages from its insurers, and its rights against the defendant have been acquired by them under subrogation. The defendant is protected by an insurer which has agreed to satisfy any judgment which the plaintiff may obtain in the action.
The defendant has moved that the plaintiff's insurers as the plaintiffs in interest "be made to join as party plaintiffs" and that each of them be required to furnish security for costs.
The plaintiff has moved that the defendant's insurer "be joined as a party defendant."
The questions whether these motions should be granted, together with the question whether the fact of insurance for a party if the motion of the other party should be granted should be disclosed to the jury on a jury trial of the action, have been transferred without ruling by Young, C. J.
Thorp & Branch, of Manchester, by brief, for plaintiff.
McLane, Davis & Carleton, of Manchester, by brief, for defendant.
No sufficient reason for granting the defendant's motion appears. While the plaintiff has no interest to maintain the action and while its insurers are the real and active claimants against the defendant, the rights of the insurers are only to enforce the rights of the plaintiff, in whose name the action must stand and be maintained. The right of the insurers to be joined as plaintiffs in interest is not a right of the defendant that they shall be. They are parties privy to the action without actual appearance therein.
The insurers being nonresidents, the defendant has the right that security for costs be furnished (P.L. c. 341, § 3; P.L. c. 330, § 8; Hening's Dig., 361, and cases cited), but the security may be ordered without their appearance as necessary parties.
The plaintiff's motion should also be dismissed. It has no rights against the defendant's insurer unless by trustee process, and the insurer is in no respect a party in interest, even if it has the right or has agreed to defend the action.
The facts of insurance in a trial of the...
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American Fidelity & Cas. Co. v. All American Bus Lines
...the name of the insured, since the common law courts did not recognize the equitable interest of the insurer. Montello Shoe Co. v. Suncook Industries, 92 N.H. 161, 26 A.2d 676; Annotation 157 A.L.R. 1242, 96 A.L.R. 864. On the other hand, in suits in equity or admiralty, the fully subrogate......
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Zielinski v. Cornwell
...the rule that insurance should not be disclosed to the jury except in cases of unavoidable necessity. Montello Shoe Co. v. Suncook Industries, 92 N.H. 161, 162, 26 A.2d 676; Wilson v. Manchester Savings Bank, 95 N.H. 113, 58 A.2d 745. Even in cases where the insurance carrier is a plaintiff......
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Sibson v. Robert's Exp., Inc.
...are only to enforce the rights of the plaintiff, in whose names the action must stand and be maintained.' Montello Shoe Co. v. Suncook Industries, 92 N.H. 161, 162, 26 A.2d 676. If a subrogation claim becomes barred by a judgment because of the insurer's failure to intervene owing to noncul......
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Wilson v. Manchester Sav. Bank.
...that ‘the facts of insurance * * * should not be disclosed to the jury without unavoidable necessity.’ Montello Shoe Company v. Suncook Industries, 92 N.H. 161, 162, 26 A.2d 676, 677. Obviously there was no unavoidable necessity here and the result of the procedure adopted was to deprive th......