ÆTna Life Ins. Co. v. Chandler

• Decision Date: 24 June 1937
• Parties: ÆTNA LIFE INS. CO. et al. v. CHANDLER et al.
• Court: New Hampshire Supreme Court

193 A. 233

ÆTNA LIFE INS. CO. et al.

v. CHANDLER et al.

Supreme Court of New Hampshire. Rockingham.

June 24, 1937.

Exceptions from Superior Court, Rockingham County; Lorimer, Judge.

Petition for a declaratory judgment by the Ætna Life Insurance Company and another against Nellie Joy Chandler and others. Judgment for defendants, and plaintiffs bring exceptions.

New trial.

Petition for a declaratory judgment, to determine the rights of the parties under a motor vehicle liability policy issued to Nellie J. Chandler, a resident of Massachusetts and containing a so-called omnibus coverage agreement extending the terms and conditions of the policy so as to be available to persons operating the car "with the permission of the named Assured." The defendants are Wallace I. Randall and Josephine M. Randall (injured at Seabrook on March 21, 1932, in a collision with the car in question) and William F. Rand, who was driving the car when the accident occurred. Nellie J. Chandler was not properly served with process and is not a party to these proceedings.

Trial by the court, who found the following facts:

"Mrs. Chandler, of Haverhill, Mass., purchased a Chevrolet in 1930. Petitioner insured the car at the time of the accident under a policy containing an extra territorial coverage provision which for the purposes of this case extended coverage for accidents occurring outside of the Commonwealth of Massachusetts 'to any person, firm or corporation legally responsible for the operation thereof, provided such use or operation is with the permission of the named assured. * * *

"Mrs. Chandler did not have a license to operate the car. She did not know how to operate it. Miss Harriman, of Haverhill, Mass., an intimate friend of Mrs. Chandler, operated the car for Mrs. Chandler and for herself with Mrs. Chandler's permission for over a year prior to the accident.

"In July, 1931, Miss Harriman secured clerical employment at Lamie's Tavern at Hampton. With Mrs. Chandler's consent Miss Harriman drove the car back and forth to her work in Hampton, often remaining in Hampton overnight when she would put the car in a garage.

"On March 21, 1932, Miss Harriman was taken sick at Lamie's. She needed medicine and requested Rand to take the car to Newburyport, Mass., a neighboring town, to obtain the medicine and park the car in the garage upon his return. The collision between the Chandler car driven by Rand and the Randall car occurred on the Lafayette Boulevard while Rand was on the way to Newburyport on the errand for Miss Harriman.

"Mrs. Chandler did not know Rand and did not give express permission to Miss Harriman to have Rand go to Newburyport to obtain medicine for Miss Harriman.

"Both Rand and Miss Harriman were legally responsible for the operation of the car at the time of the accident. Rand undertook the trip to Newburyport as agent for Miss Harriman.

"Mrs. Chandler permitted Miss Harriman the reasonable use of the car for Miss Harriman's needs. In this case the need was urgent and the use was reasonable.

"Mrs. Chandler impliedly permitted the use made of her car at the time of the accident. The use of the car on an errand of mercy for Miss Harriman was within the permissive scope contemplated by Mrs. Chandler and Miss Harriman. It did not constitute a conversion of the car.

"The Court rules that the policy extends coverage to Rand for the accident on Mar. 21, 1932."

The plaintiffs excepted to the foregoing findings and rulings and to the refusal of the court to grant certain requests. At some time between the date of the accident and that of the trial, Miss Harriman was married. She is referred to in the requests as Mrs. Fleming. The plaintiffs' bill of exceptions was allowed by Lorimer, J.

Hughes & Burns, of Dover, and Charles F. Hartnett, of Boston, Mass. (S. M. Burns, of Dover, orally), for plaintiffs. William H. Sleeper, of Exeter, for defendants.

MARBLE, Justice.

It is the general rule that a bailee "has no right to delegate his power of user, unless there is some understanding or agreement to that effect." 6 C.J. 1115. But a use "required by reasonable necessity" may sometimes be inferred from the terms of the bailment although not specifically included therein. Evans v. Mason, 64 N.H. 98, 99, 5 A. 766.

The trial court in the present case has found that the bailor permitted the bailee the reasonable use of the car for the bailee's needs, that the bailee had an urgent need for the car on the night of the accident, and that the use made of it was reasonable; that such use was within the permissive scope contemplated by the bailor and the bailee and did not constitute a conversion. These findings are fully warranted by the evidence.

The bailee testified in part as follows:

"Q. About a year before the accident happened did you have some understanding with Mrs. Chandler about this automobile? A. I was to drive for her. * * * "Q. And * * * why did Mrs. Chandler have you drive for her at that time? A. Because she was unable to drive herself.

* * * She just couldn't learn to drive.

* * *

"Q. When you went up there to Hampton what was done about the car, between you and Mrs. Chandler? A. I drove the car back and forth to the Tavern just as though it was my own. * * *

"Q. And what understanding did you have with her about the use that you were to make of the car? A. I was to use the car as though it was my own. * * *

"Q. And you say you used the car as you would your own? A. Yes.

"Q. She understood that? * * * A. There was nothing said that I could do or could not do. * * *

"Court: Did she ever object to your using the car?

"Witness: No. I drove just as though it was my car, using discretion of course because it was her car. * * * Whenever she wanted to go some place I was to take her and then when I went to work at Lamie's Tavern she gave me permission to drive the car back and forth to work. If I stayed down there I hired a garage to put it in and when I was at home I left it in my own garage. * * *

"Q. If you wanted it for your own needs and reasonable, why you understood you could. A. Yes."

On the facts found, the court correctly ruled that the coverage of the policy extended to the bailee's agent, through whom at the time of...