Villars v. City of Portsmouth

CourtSupreme Court of New Hampshire
Citation129 A.2d 914,100 N.H. 453
PartiesPaul E. VILLARS, by his father and next friend, v. CITY OF PORTSMOUTH and American Fidelity Insurance Company.
Decision Date26 March 1957

Page 914

129 A.2d 914
100 N.H. 453
Paul E. VILLARS, by his father and next friend,
CITY OF PORTSMOUTH and American Fidelity Insurance Company.
Supreme Court of New Hampshire.
Argued Jan. 2, 1957.
Decided Feb. 28, 1957.
As Modified on Denial of Rehearing March 26, 1957.

William H. Sleeper and Wayne J. Mullavey, Exeter, for plaintiff.

Thomas J. Flynn, Jr., City Solicitor, Portsmouth, for City of Portsmouth.

Waldron, Boynton & Waldron, Portsmouth, Wyman B. Boynton, Portsmouth, for American Fidelity Insurance Co.

BLANDIN, Justice.

The plaintiff states on information and belief that the city has a liability policy with the defendant company which affords coverage to him individually and to his minor son. He then alleges that his counsel cannot 'advise as to coverage until he has had an opportunity to examine the master policy of said insurance company which has now been located in the possession of the City Clerk * * *.' Our declaratory judgment statute, RSA 491:22, which the plaintiff would invoke, reads as follows: 'Any person claiming a present legal or equitable right or title may maintain a petition against any person claiming adversely to such right or title, to determine the question as between the parties, and the court's judgment or decree thereon shall be conclusive.' It appears that the plaintiff claims a present right to inspect the liability policies, if any, held by the city, which right the city denies.

A justiciable controversy is presented by the plaintiff's claim of a right to inspect the policies of insurance held by the city, and by the city's denial of that right through its city clerk and through the motion filed herein, alleging that the plaintiff is not entitled to be informed as to the contents of the policies. With respect to this controversy the rights of the parties were properly determinable on petition for declaratory judgment.

[100 N.H. 455] While under common law the city would not be liable to the plaintiff, Cushman v. Grafton County, 97 N.H. 32, 79 A.2d 630, under RSA 412:3, if a policy of liability insurance has been procured by the city liability may exist up to its limits. Adverse claims are involved (see 1 Anderson, Declaratory Judgments (2nd Ed.) § 32) and as between the plaintiff and the city, the parties may fairly be said to be 'in gear.' Borchard, Declaratory Judgments, p. 36. In this situation our declaratory judgment act is applicable. Faulkner v. Keene, 85 N.H. 147, 154-155, 155 A. 195. The...

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11 cases
  • Merrill v. City of Manchester, 6281
    • United States
    • Supreme Court of New Hampshire
    • November 29, 1974
    ...purchased by a city, town, and other units to cover damages resulting from performance of governmental functions. Villars v. Portsmouth, 100 N.H. 453, 129 A.2d 914 In Gossler v. Manchester, 107 N.H. 310, 311, 221 A.2d 242, 243 (1966), this court made the following observation: 'The rule aga......
  • McDuffey v. Boston & M.R.R.
    • United States
    • Supreme Court of New Hampshire
    • June 30, 1959 indicate that it is subject to limitations. Staargaard v. Public Service Company, 96 N.H. 17, 69 A.2d 4; Villars v. City of Portsmouth, 100 N.H. 453, 455, 129 A.2d 914. Thus in the Staargaard case the plaintiff sought to produce on deposition accident reports relating to all prior bus ac......
  • Portsmouth Hospital v. Indemnity Ins. Co. of North America, 5688
    • United States
    • Supreme Court of New Hampshire
    • May 29, 1968
    ...are repudiated and rights invaded. Leavitt v. Town of North [109 N.H. 56] Hampton, 98 N.H. 193, 195, 96 A.2d 554; Villars v. Portsmouth, 100 N.H. 453, 454, 129 A.2d 914; Vlahos Realty Co. v. Little Boar's Head Dist., 101 N.H. 460, 465, 146 A.2d 257; 20 Appleman, Insurance Law and Practice, ......
  • Ruark v. Smith
    • United States
    • Superior Court of Delaware
    • January 5, 1959
    ...964; Orgel v. McCurdy, D.C., 8 F.R.D. 585; Brackett v. Woodall Food Products, Inc., D.C., 12 F.R.D. 4; Villars v. City of Portsmouth, 100 N.H. 453, 129 A.2d The Supreme Court of this State in the case of Lord v. Poore, 9 Terry 595, 108 A.2d 366, 370, held that the 'mention of liability insu......
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