Wilson v. Frankfort Marine, Accident & Plate Glass Ins. Co.
| Decision Date | 27 June 1914 |
| Citation | 77 N.H. 344,91 A. 913 |
| Court | New Hampshire Supreme Court |
| Parties | WILSON v. FRANKFORT MARINE, ACCIDENT & PLATE GLASS INS. CO. |
Transferred from Superior Court, Coos County; Sawyer, Judge.
Action by Frank L. Wilson against the Frankfort Marine, Accident & Plate Glass Insurance Company on an employer's liability insurance contract to recover the amount of a judgment rendered against plaintiff for an injury to an employé admitted to be within the terms of the policy. At the close of plaintiff's evidence, defendant moved for a nonsuit which was granted, subject to exception, on defendant's agreement that judgment should be for plaintiff if the order was not sustained, and the case was transferred to the Supreme Court. Judgment for plaintiff.
Sullivan & Daley and Ira W. Thayer, both of Berlin, for plaintiff. Rich & Marble, of Berlin, and H. Robert Bygrave, of Boston, Mass., for defendant.
PEASLEE, J. Two defenses to this suit are set up:
1. It is claimed that the interest of the assured was not correctly set out in the application for insurance, in that the concern was a partnership, whereas the plaintiff stated that he was the sole owner. It is not necessary to consider whether this would be a good defense, if proved. The case is here upon an agreement that, if there was any evidence for the jury to pass upon, there shall be judgment for the plaintiff. Upon this issue the plaintiff testified that he was the sole owner of the business. This was sufficient to support a verdict to that effect, and disposes of the defense claimed.
2. The policy provides that, when suit is brought against the assured, the copy of the writ served upon him shall be sent to the insurer immediately. This was not done in the present case, but there is evidence sufficient to support a finding that the defendant is now estopped to complain of the omission. The defendant's counsel took charge of the matter immediately after the accident happened, and before suit was brought had done the customary work taking statements of witnesses and parties, and had held conferences with the injured servant looking toward an adjustment. When the writ was served, the present plaintiff, or those interested for him, called upon the defendant's counsel, but failed to leave the copy. Counsel continued to act in the matter, appeared at the return of the writ in court, and conducted the defense, without giving the plaintiff notice of the claim now made. Having thus assured the plaintiff that he could rely upon its liability until all opportunity to make defense in his own behalf was lost, the defendant is plainly estopped to now take an inconsistent attitude. Perry v. Insurance Co., 67 N. H. 291, 33 Atl. 731, 68 Am. St. Rep. 668.
But the defendant seeks to avoid this conclusion by...
To continue reading
Request your trial
-
Gold Issue Min. & Mill. Co. v. Pennsylvania Fire Ins. Co.
...159 Ill. 179, 42 N. E. 606; Pechner v. Ins. Co., 65 N. Y. 195; Frye v. Equitable Society, 111 Me. 287, 89 Atl. 57; Wilson v. Ins. Co., 77 N. H. 344, 91 Atl. 913; Ins. Co. v. Stanley, 15 Ga. App. 263, 82 S. E. 826; Clay v. Ins. Co., 97 Ga. 44, 25 S. E. 417; Blass v. Ins. Co., 18 App. Div. 48......
-
Employers Mut. Cas. Co. v. Nosser, 43044
...of fact for the jury as to whether it was mailed. This identical question was so decided in the case of Wilson v. Frankfort Marine, etc., Inc. Co., 77 N.H. 344, 91 A. 913, 914, and that court said: 'One error in this argument is the assumption that the jury must find that the letter was wri......
-
The Gold Issue Mining & Milling Co. v. Pennsylvania Fire Insurance Co., of Philadelphia
...S.W. 672; Ins. Co. v. Dowdall, 159 Ill. 179, 42 N.E. 606; Pechner v. Ins. Co., 65 N.Y. 195; Frye v. Equitable Society, 89 A. 57; Wilson v. Ins. Co., 91 A. 913; Ins. v. Stanley, 82 S.E. 826; Clay v. Ins. Co., 25 S.E. 417; Blass v. Ins. Co., 46 N.Y.S. 392; Prendergast v. Ins. Co., 67 Mo.App. ......
-
Duval v. Metro. Life Ins. Co.
...Rep. 668; Spalding v. Insurance Company, 71 N. H. 441, 52 A. 858; Dusseault v. Association, 74 N. H. 407, 68 A. 461; Wilson v. Insurance Company, 77 N. H. 344, 91 A. 913; Bachman v. Insurance Company, 78 N. H. 100, 97 A. 223; Langlois v. Association, 79 N. H. 264, 108 A. 289; Daley v. Insur......