Tyler Advertising, Inc. v. Lamprey

• Decision Date: 30 March 1966
• Citation: 107 N.H. 138,218 A.2d 71
• Parties: TYLER ADVERTISING, INC. v. Stewart LAMPREY.
• Court: New Hampshire Supreme Court

Page 71

218 A.2d 71

107 N.H. 138

TYLER ADVERTISING, INC. v. Stewart LAMPREY.

Supreme Court of New Hampshire.

Argued Feb. 1, 1966.

Decided March 30, 1966.

Wescott & Millham, Peter V. Millham, Laconia, for plaintiff.

Devine, Millimet, McDonough, Stahl & Branch, and Luke S. O'Neill, Manchester, for defendant.

DUNCAN, Justice.

The issues presented by this transfer are limited by the generality of the exceptions to consideration of questions of law apparent upon the face of the findings and rulings. Eastman v. Waisman, 94 N.H. 253, 51 A.2d 151, Racine v. Armstrong, 100 N.H. 96, 120 A.2d 137. See Lynch v. Grundy, 98 N.H. 282, 284, 98 A.2d 160. The plaintiff's argument for the most part comes within that limitation.

The findings and rulings of the Trial Court, apart from those relating to the issue of whether a charge was made by the plaintiff for use of its plane by the pilot at the controls when the plane was damaged, were as follows:

'The Court finds that Tyler Advertising, Inc., through its president and agent, Henry J. Tyler, purchased insurance on three airplanes beginning in January of 1960 from the Lamprey & Lamprey insurance agency, having all of his dealings with Stewart Lamprey, the duly authorized agent of the insurance agency.

'The Court finds that during all of the period of negotiations the insurance agent was acting as a broker and did not have authority to bind the insurance company except as he was specifically notified as to binders by the insurance company.

'In January of 1960, Tyler Advertising, Inc. purchased a Globe Swift airplane and secured, through Lamprey Insurance Agency a liability policy. While some inquiry was made at this time on the question of charter flight coverage, it was not pursued.

'On June 7, 1960, the Tyler Advertising, Inc., having traded the Globe Swift plane for a Beechcraft Bonanza, 1948 model, and because of the additional cost of this plane, made inquiry through Stewart Lamprey as to the cost of obtaining hull insurance, 'hull insurance' being the phrase used in airplane insurance to refer to coverage commonly known as collision coverage in the automobile insurance industry. Stewart Lamprey was unfamiliar with the aircraft policy filed and in order to obtain information, from time to time, either by letter or by telephone, made his inquiries of the U.S. Aviation Underwriters who generally underwrite policies on aircraft insurance with various insurance companies. He was informed and communicated to Mr. Tyler that there were three possible types of hull coverage, and an application was filed on the 28th day of June, 1960, signed by Mr. Tyler for the Tyler Advertising, Inc., requesting all risk ground, limited in-flight coverage, which has been checked on Plaintiff's Exhibit No. 3, the application for insurance, under Coverage 'A'.

'The Court finds that at this time there was a discussion as to what was meant by 'in-flight' coverage since Coverage 'A' specifically (covers) damage to the aircraft except while in flight, with certain exceptions, and defines 'in- flight' as being: 'The aircraft is 'in flight' from the time it moves forward in attempting to take off and continuing thereafter until it has completed its landing run.' An inquiry was made at this time as to whether this excluded losses occurring during taxiing, and Lamprey inquired and informed Tyler that it did not exclude taxiing accidents.

'The 1948 Bonanza was held until July 23, 1960, at which time it was sold and the policies, both liability and hull coverage, cancelled.

'In early August, 1960, a 1960, a 1951 Beechcraft Bonanza was purchased by Tyler Advertising, Inc., and a request was made of Lamprey to secure coverage on this plane. The Court finds that coverage was secured the same as on the '48 Bonanza and that the company thereupon pro-rated rather than giving short term cancellation on the prior policy. The Court finds that at this time Tyler was informed that he had the same coverage as he had had on the Bonanza previously owned.

'The Court finds that there was a discussion between Harold Wescott, Jr., Henry J. Tyler and Stewart Lamprey at the office of Harold Wescott, Jr., called by Harold Wescott primarily because of his concern over liability insurance. The Court finds that there is a difference in opinion as to which was the most important matter to each of the participants in this conference but that three matters were discussed. One was a pilot by the name of Richard Lacasse, an employee of Wescott's company. The second was liability insurance, including liability insurance for passengers. The third was the question of hull coverage.

'The Court finds that at this discussion Tyler, in discussing hull insurance, stated that he was interested in taxiing and taking off coverage but not in in-flight coverage. There is no evidence, however, from which the Court can find that he ever requested specifically that Lamprey procure at this time any different coverage than was previously on the plane. The Court finds that at this time Tyler was as fully informed as to the insurance coverage that he had as was Lamprey and that no negligence may be imputed to Lamprey for failing to change the coverage at this time.

'The Court further finds that particularly at the conference with Harold Wescott, Jr. it was made apparent to Lamprey that the plane was to be used by persons other than employees of the Tyler Advertising, Inc., in particular the employees of Harold Wescott, Jr. and Richard Lacasse of the Wescott Company * * *

'The Court finds that on December 14, 1960, while the plane was being used by Harold Wescott, Jr., in returning from a flight to Keene, N.H., that the wheels retracted during the landing operation of the plane causing damage to the plane in the amount of $4,365.15 and that since the policy is a $300.00 deductible policy the damages to the plaintiff are in the amount of $4,065.15.

'The Court further finds that subsequent to the accident, Stewart Lamprey participated in processing the claim of the Tyler company and that he did not inform at any time the Tyler company that there was any question of coverage until coverage was denied by the company; that he processed the claim originally as though it were a ground accident. The Court further finds that both Tyler and Lamprey processed this claim...