Putnam v. Employers Liab. Assur. Corp., Ltd.

• Decision Date: 07 February 1939
• Citation: 4 A.2d 353
• Parties: PUTNAM v. EMPLOYERS LIABILITY ASSUR. CORPORATION, LIMITED.
• Court: New Hampshire Supreme Court

4 A.2d 353

PUTNAM

v. EMPLOYERS LIABILITY ASSUR. CORPORATION, LIMITED.

Supreme Court of New Hampshire. Hillsborough.

Feb. 7, 1939.

Transferred from Superior Court, Hillsborough County; Johnston, Judge.

Suit by Elsie Putnam, executrix, against Employers Liability Assurance Corporation, Limited, to compel payment of a judgment under an automobile liability policy. The case was transferred on the defendant's exception to the holding against it, and, without ruling, upon the question of the defendant's liability for the expenses of the plaintiff's personal injuries.

Case discharged.

Bill, to compel payment under an automobile liability policy. Judgments against the named insured have been recovered by the plaintiff personally and as executrix of the will of her deceased husband, who died while his action was pending. Her personal judgment was for $10,000 and in her action as executrix the judgment was for $4,500. The verdict in the latter action included damages for injury to the husband's automobile, and for his personal injuries, and allowance for the expenses incurred on account of the injury to his wife.

The policy is a Massachusetts contract. The accident for which the named assured was liable happened in this state. As to such an accident the policy insured liability "for damages on account of bodily injuries".

The liability was limited tp $5,000 "for one person receiving bodily injuries", to $10,000, "on account of any one accident causing bodily injuries to more than one person", but subject to the limit of $5000 for each person, and to $5000 for property damage.

After final judgment in the plaintiff's personal action, the defendant paid her $5000, with costs and interest. In the verdict in her action as executrix, there were no special findings by the jury for the amount of each element of the damages. On hearing the court found that $3118.84 of the verdict was for bills incurred because of the plaintiff's personal injuries, and held the plaintiff entitled to recover $1381.16 as the difference between the verdict of $4,500 and the bills of $3118.84. Transferred by Johnston, J., on the defendant's exception to the holding against it, and, without ruling, upon the question of its liability for the expenses of the plaintiff's personal injuries. The opinion sets forth certain additional facts.

Devins & Tobin and John E. Tobin, all of Manchester, for plaintiff.

John J. Sheehan and William L. Phinney, both of Manchester, for defendant.

ALLEN, Chief Justice.

The verdict of $4,500 in the jury trial included no allowance for loss of consortium. The case states that it was for expenses on account of the injuries to the decedent's wife, for his personal injuries, and for his property damage. The point is taken that the jury's allowance for each of these elements cannot now be ascertained. Special verdicts therefor, although sought, were not required. While if directed and returned, they would be conclusive, yet without them, it is not impossible to find what the separate allowances which went to make up the single verdict were. The issue is one to be determined, as civil issues in general are, by the balance of probabilities. In the law proof is thus established.

The insurer's defence of the action against the named insured does not entitle the plaintiff to a right of estoppel against its claim of no coverage for the item of the decedent's consequential loss. This was a matter between the insurer and the named assured, and it does not appear that as between them the insurer's defence imposed its admission of coverage for the item. The plaintiff is not prejudiced in any respect. As to her, it was wholly immaterial that the issue of coverage for the item should be determined before the jury trial. Moreover, there were "excusing circumstances" (Sauriolle v. O'Gorman, 86 N.H. 39, 49, 163 A. 717; Gibbs v. Lumbermen's Mut. Cas. Co., 87 N.H. 19, 21, 173 A. 372) which relieved the insurer from ascertainment of its liability...