Morin v. Travelers' Ins. Co.
| Decision Date | 03 May 1932 |
| Citation | 160 A. 482 |
| Parties | MORIN v. TRAVELERS' INS. CO. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County; Burque, Judge.
Action by Victoria Morin against Travelers' Insurance Company. Transferred by the Trial Term without ruling.
Judgment for defendant.
Action to recover on a liability policy insuring the owner of an automobile and any one using it with his consent. In the plaintiff's prior action against the owner, judgment was rendered against her, but, in her action against the driver, there was a judgment in her favor.
The defendant pleaded the judgment against the plaintiff as a bar to this action. Upon hearing on the plea, plaintiff's attorneys were asked if they had any evidence tending to show the driver's use of the car with the owner's consent besides that at the trial of the prior actions. Upon their claim of further evidence the court ordered affidavits in support of it to be furnished. None were filed, and the court was later informed none would be. A finding that no further evidence was available was then made.
The court (Burque, J.) transferred without ruling the question of his discretionary right to order a verdict for the defendant, upon a ruling that the available evidence was insufficient to sustain a verdict for the plaintiff.
Banigan & Banigan, of Manchester (Edward W. Banigan, of Manchester, orally), for plaintiff.
Wyman, Starr, Booth & Wadleigh, of Manchester (R. P. Booth, of Manchester, orally), for defendant.
The plaintiff claims that she will be denied her day in court if she is not permitted to go to trial, and says that the trial court had no right to issue orders in advance of the trial to ascertain what the evidence would be. The court had general charge over the action, and its jurisdiction is undoubted, even if the procedure was unusual and Irregular. In Hughes v. Railroad, 71 N. H. 279, 51 A. 1070, 93 Am. St. Rep. 518, a nonsuit was held properly ordered on the opening statement of plaintiff's counsel, and In Burleigh v. Wong Soon Leun, 83 N. H. 115, 139 A. 184, an order for determining a main issue of liability in connection with a collateral issue was held a procedural defect which was made valid by its acceptance.
The plaintiff here made no objection and took no exception to the procedure adopted and the order in pursuance of it. She thus waived any error or irregularity in it and accepted it. Her claim now made comes too late.
The issue was thereby properly before the court if the evidence of the former trial was sufficient to entitle the plaintiff to have her case submitted to a jury. The only evidence of the owner's consent for the driver to use the car was of a use of service. This evidence was an alleged admission of the owner. Although the verdict for the owner,...
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