Standard Accident Ins. Co. v. Cloutier

• Court: New Hampshire Supreme Court
• Writing for the Court: PAGE, Justice.
• Citation: Standard Accident Ins. Co. v. Cloutier, 92 N.H. 449, 147 A.L.R. 626, 32 A.2d 684 (N.H. 1943)
• Decision Date: 01 June 1943
• Parties: STANDARD ACCIDENT INS. CO. v. CLOUTIER et al.

32 A.2d 684

STANDARD ACCIDENT INS. CO.

v.CLOUTIER et al.

Supreme Court of New Hampshire.

June 1, 1943.

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

Action by Standard Accident Insurance Company against Odilon Cloutier and others for a declaratory judgment to determine plaintiff's liability under an automobile liability insurance policy. Trial by the court without a jury resulted in a verdict adverse to plaintiffs, and the case is transferred on plaintiff's bill of exceptions.

Judgment for plaintiff.

Petition, for a declaratory judgment by an automobile liability insurer against the insured, Odilon Cloutier, and his son, driver of the car with Odilon's consent, and Auger and Daneault, passengers therein at a time when they were injured through the alleged negligence of the driver and the insured, both of whom have been sued by the passengers to recover for injuries. The insurer seeks to have determined the question of its liability to defend these suits and pay any recovery there may be. Trial by the court without a jury resulted in a verdict that the plaintiff is so obligated. The plaintiff excepted generally to the finding of coverage, and to specific findings, also to the denial of its requests for a finding that the insured was carrying Auger and Daneault for a consideration and a ruling that the policy was not in force at the time of the accident, and also to the denial of its motion to set the verdict aside on grounds covered in substance by the exceptions already mentioned. Transferred by Connor, J., on the plaintiff's bill of exceptions. The essential facts appear in the opinion.

Paul E. Nourie, of Manchester, by brief and orally, for plaintiff.

Robert W. Upton and Laurence I. Duncan, both of Concord, (Mr. Duncan orally), for defendants.

PAGE, Justice.

The passengers, Auger and Daneault, worked for the Boston & Maine Railroad in Concord, and Odilon Cloutier was their foreman. All of the defendants lived in or near the village of Suncook. For five years prior to the accident the passengers had traveled to and from work nearly every work-day in Odilon Cloutier's car. The court found that “contributions either in the purchase of gasoline or otherwise were made”, also that the “tender of varying amounts indicates that there existed at most a voluntary sharing of expenses, and not an understanding of a business character that the passengers were to pay for their transportation.”

After this finding, the court summed up by saying, “On the state of the evidence the court cannot find that the probabilities favor the plaintiff in its contentions but at most are evenly balanced. The plaintiff having assumed the ordinary position of a plaintiff has imposed upon it the burden of proof, and this burden not having been sustained the petition must be and is dismissed and judgment is ordered for the defendants. ***” For reasons unnecessary to enlarge upon, the ruling was erroneous. The plaintiff did not waive the evidentiary rule of the burden of proof that was on the defendants and the defendants waived the procedural rule by permitting the plaintiff without objection or exception to go forward and have the closing, as a matter that made “little difference.” Travelers, etc., Company v. Greenough, 88 N.H. 391, 393, 190 A. 129, 109 A.L.R. 1096; Caswell v. Maplewood Garage, 84 N.H. 241, 255, 149 A. 746, 73 A.L.R. 433; Spilene v. Salmon Falls Mfg. Company, 79 N.H. 326, 108 A. 808; Chesley v. Chesley, 37 N.H. 229; Wigmore Evidence, 3d Ed., §§ 2487, 2489. The understanding of the parties at the trial was not that the burden of the risk of non-persuasion shifted (Hartford, etc., Company v. Lougee, 89 N.H. 222, 223, 196 A. 267), but that it did not matter who opened and closed. The evidentiary rule is not lightly to be invaded. Raymond v. Great American Indemnity Company, 86 N.H. 93, 96, 163 A. 713.

Since the ruling as to the burden of proof was erroneous, the defendants were met at every stage of the trial with the necessity of proving by the balance of the probabilities that Auger and Daneault were not carried for a consideration. They were bound by their own testimony on this issue. Harlow v. Leclair, 82 N.H. 506, 136 A. 128, 50 A.L.R. 973.

Their testimony puts it beyond question that Odilon Cloutier, the assured, had driven Auger and Daneault to and from work practically every day for a period of five years preceding the accident. All the four defendants denied their signed statements that Auger and Daneault had paid for their transportation sums ranging from fifty cents to a dollar a week on the average; they testified that they had never told the scrivener of the statements any such thing. Daneault even denied with some vehemence that he ever signed his statement, though his handwriting was satisfactorily proved and though one of his sons later testified that he saw him sign the statement.

While there was the strongest evidence that Daneault told an untruth, it was still possible for the trier of fact to find that he was merely mistaken or of unsound memory, and also that the scrivener of the statements lied or was mistaken when he swore to the facts in the statements as having been told to him by all the defendants; or he might have found that the defendants did not know what they signed. But it is by no means possible for the defendants to escape their testimony at the trial.

The insured testified that Auger and Daneault never paid him a cent, and that he never asked for money. Auger and Daneault denied that they ever paid any money. Adopting this part of their stories, that would be enough to warrant a finding of coverage only on such a theory as that adopted in Ohio, that the word “consideration” as used in the policy, must be money paid in accordance with an agreement in advance, so that, as between friends, a sharing of expenses, as by paying for gasoline, cannot be consideration. Beer v. Beer, 134 Ohio St. 271, 16 N.E.2d 413, 118 A.L.R. 388; Myers v. Ocean Accident & Guarantee Corporation, 4 Cir., 99 F.2d 485.

The defendants are firmly impaled on their further testimony as to contributions. Daneault testified freely that he bought gasoline for use while they were being conveyed. “I don't remember how often but every three or four weeks he [the insured] stopped to get gas; he always bought his own gas but when he stopped to buy gas I opened up the window and paid the fellow for the gas.” Later Daneault fixed the periods between Cloutier's purchases paid for by him as two, three or four weeks. Auger testified that he, also, sometimes paid for the gasoline.

We can take judicial notice of the...