Travelers Ins. Co. v. Marcoux, 3243.
| Citation | 21 A.2d 161 |
| Decision Date | 25 June 1941 |
| Docket Number | No. 3243.,3243. |
| Parties | TRAVELERS INS. CO. et al. v. MARCOUX et al. |
| Court | Supreme Court of New Hampshire |
Exceptions from Superior Court, Hillsborough County; Johnston, Judge.
Proceeding by the Travelers Insurance Company and another against Rebecca Marcoux and another, for declaratory judgment to determine the rights of the parties under a motor vehicle liability insurance policy issued by the named plaintiff. An order was entered in favor of named plaintiff. On named defendant's exceptions.
Exceptions overruled.
Petition for a declaratory judgment to determine the rights of the parties under a motor vehicle liability insurance policy issued by the plaintiff to the Fitch Motor Company, Inc. This policy provides that it shall cover certain officers of the named assured "and (b) any other person or organization legally responsible for the use of, or while legally used for business or pleasure and with the permission of the named assured any automobile owned by the named assured."
On August 21, 1937, a car of the Fitch Motor Company, Inc. driven by the defendant Simone Potvin, was involved in an accident, as a result of which the defendant Rebecca Marcoux was injured. There was a trial by jury of the single issue: "Did Simone Potvin have the car which she was driving at the time of the accident with the express or implied permission of the owner, the Fitch Motor Company, Inc.?" The jury answered this question in the affirmative. Subsequently, on motion of the plaintiff, this verdict was set aside and the court entered the following order: "It is hereby adjudged and decreed that at the time of the alleged accident, Simone Potvin was not operating the assured's car with the consent of the assured; that said company are not obligated either to defend said Simone Potvin in the action of Rebecca Marcoux v. Simone Potvin or to pay any judgment that may be rendered against her." To this order the defendant, Rebecca Marcoux, excepted.
The plaintiff also excepted to the denial of certain requests for instructions and to the charge of the court. These exceptions were also transferred by Johnston, J. The facts are stated in the opinion.
Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Robert P. Booth, of Manchester, orally), for plaintiff.
Robert J. Doyle, of Manchester, for defendant Marcoux.
Simone Potvin is the daughter of Joseph E. Potvin, who is a salesman in the employ of the defendant Fitch Motor Company, Inc. In 1937, the Fitch Motor Company, Inc., assigned to him, as a demonstrator, a cream-colored Chevrolet automobile. This car was to be used by Potvin "in the sale of automobiles" and also "to go back and forth to our work." He testified that it was a rule of the Fitch Motor Company, Inc., "not to let anyone else use them (demonstrators) except for business purposes only." Nevertheless Simone learned to drive her father's demonstrator and used it for her own purposes two or three times a week in the evening. She always got the car through her father and there was no evidence to charge his employer with knowledge of this use.
On the day before the accident, Mr. Potvin made a sale of a used car, and as a part of the transaction, agreed "to transfer the plates for him." Accordingly, upon August 21, 1937, he "sent Simone to Concord to change the registration" using the cream-colored demonstrator for that purpose. She left the garage of the Fitch Motor Company at about 11 o'clock without the knowledge of anyone in authority and returned about 12, to find that her father had gone home to dinner in another car. She accordingly drove the demonstrator home for her dinner. During dinner, Mr. Potvin received a telephone call and at once started for the garage, leaving the demonstrator at his house and asking Simone to bring it back to the garage.
Simone was planning to attend the so-called soap-box derby with some friends that afternoon, and upon leaving the house she first drove south to Dix Street where she picked up the defendant Rebecca Marcoux; thence to a drug store...
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