193 A. 233

AETNA LIFE INSURANCE CO. a. v. NELLIE JOY CHANDLER a.

Supreme Court of New Hampshire Rockingham.
Decided June 24, 1937.

A motor vehicle liability policy issued in Massachusetts gave extra-territorial coverage “to any person . . . legally responsible for the operation thereof, provided such use or operation is with the permission of the named assured.” Permission having been given by the named assured to a bailee to use the car reasonably for the latter’s needs, the coverage extended to an agent of the bailee who during her illness and upon her direction was driving the car to procure medicine for her. On the issue of the permissive use of a car by the bailee, her testimony that she “could use the car as if it were her own” is competent in connection with other evidence to show the extent of the permissive use though the privilege of use was not granted by the bailor in those express terms. The fact that the express permission to a bailee to use a car may have been limited to traveling between two designated places does not as a matter of law exclude a finding on other evidence that the bailee had implied permission to make a reasonably necessary use of it outside such limits. The fact that the named assured’s car had never before been used by an agent of the bailee does not compel a finding that the bailee could only use the car personally. Express consent by the named assured to the use of a car by his bailee’s agent is not a prerequisite to the insurer’s liability under a policy providing that the “use or operation is with the permission of the named assured.” In a petition for a declaratory judgment by an insurer to determine coverage under a motor vehicle liability policy a statement made by the named insured is not admissible as an admission where he is only a nominal party and as a bailor of the vehicle is under no liability to the party claiming the coverage. In a petition by an insurer for a declaratory judgment to determine coverage the burden of proving coverage is upon the claimant. On the trial of an issue by the court, compliance with a request for a ruling as to the burden of proof may be inferred from the conduct of the trial and the findings. Where the party having the burden of proof fails to sustain it the court has discretionary power to reopen the case and receive further evidence.

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

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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

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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 and Charles F. Hartnett (Mr. Burns orally), for the plaintiffs.

William H. Sleeper, for the defendants.

MARBLE, J.

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.

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 that you used the car

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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 the accident the bailee was making a reasonable use of the car for her urgent needs.

The plaintiffs made numerous requests for findings of fact and rulings of law, and excepted to the court’s refusal to grant these requests in so far as “not covered in form or substance by the decree as rendered.”

The request for a ruling that the defendant assumed the burden of proof on the issue of coverage (Travelers Ins. Co. v. Greenough, 88 N.H. 391) was obviously granted, since at the conclusion of the evidence introduced at the original hearing the Presiding Justice stated that the evidence failed to “throw any substantial light” on the issue and permitted the case to be reopened at a later date for the introduction of further testimony. His findings after a consideration of this additional testimony were definite, affirmative assertions, determined unquestionably by a balance of the probabilities. The court had discretionary power to reopen the case and receive the added proof. Dunlap v. Dunlap, 84 N.H. 352, 353; Stone v. Boscawen Mills, 71 N.H. 288, 290, and cases cited.

Plaintiffs’ counsel in their brief state that certain requests relating to inferences to be drawn from the evidence are “iterations of the objection” voiced at the trial. The objection referred to was as follows: “We ask that the testimony that she [Miss Harriman] could use the car as if it were her own be stricken from the record.” Even though Mrs. Chandler had not granted that privilege in express terms, evidence that Miss Harriman used the car as her own without objection on Mrs. Chandler’s part was clearly admissible. And this evidence together with the other facts and circumstances surrounding the bailment justified the inferences of fact which the trial court has drawn.

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Request No. 13 was as follows: “In considering the evidence of Mrs. Fleming [Miss Harriman] as to her understanding of the use of the car, the meaning of her words that she could use it as if it were her own, must be read as she described her use of such words on cross-examination that is, that she meant only operation of the car between Haverhill and Hampton and return.” The court was entitled to consider Miss Harriman’s testimony as a whole. The fact that her express permission to use the car may have been limited to traveling between Hampton and Haverhill did not as a matter of law preclude a finding, on all the evidence, that she had implied permission to make a reasonably necessary use of it outside the limits of those places. Sauriolle v. O’Gorman, 86 N.H. 39, 50.

The mere fact that no one except Miss Harriman had ever driven the car before did not mean, in the light of all the evidence, that Mrs. Chandler had no reason to anticipate such a contingency. Hence the court correctly denied the fourteenth request, “There is no evidence that the assured’s car was ever used or allowed to be used by anyone but Mrs. Fleming [Miss Harriman] prior to the accident, and therefore there is no evidence that the assured had any reason to anticipate that Mrs. Fleming would let a third person use the car.”

In view of the evidence as to Miss Harriman’s use of the car as though it were her own, the court did not err in refusing to find that “The understanding between Mrs. Fleming [Miss Harriman] and the assured was that the former was to use the car personally.”

According to the plaintiffs’ brief, the sixteenth and seventeenth requests were predicated upon “the theory that express consent was a prerequisite to the liability of the insurer.” This theory is untenable. “Some `omnibus’ clauses use the words `express or implied consent’, thereby precluding any question as to whether or not the consent contemplated by the clause may be implied as well as express. In other such clauses, the words `permission’, `permission and consent’, `knowledge and consent’, etc., if and when they are used, appear without definition; in that event, the word or words involved are construed to include implied permission, etc.” Annotation, 72 A.L.R. 1375, 1398.

The substance of various other requests has already been considered, since each of these requests is virtually a motion for judgment.

The remaining requests have reference to the testimony of Wallace I. Randall as to Mrs. Chandler’s statements and conduct after the accident occurred. Concerning this testimony the plaintiff requested the court to rule that “The evidence of Randall as to the alleged

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conversation with Mrs. Chandler is admissible only to impeach the credibility of Mrs. Chandler, and is not admissible either as an admission on the part of Mrs. Chandler or as evidence of the circumstances of, or surrounding the bailment.” Mrs. Chandler is not properly a party to these proceedings nor is she, as bailor of the car, under any liability to the defendants. The request should have been granted. Morin v. Insurance Co., 85 N.H. 471.

Although Randall testified at the first hearing, when the court stated that the evidence then introduced failed to throw any substantial light on the issue, the testimony was nevertheless received as having “some bearing in relationship.” Furthermore, at the conclusion of the second hearing, the Presiding Justice remarked: “The evidence is closed and consists of what transpired at the original hearing and today.” Under these circumstances the general rule “that the admission of incompetent evidence upon a material issue in a trial before any judicial tribunal vitiates the result” must be applied. Doe v. Lucy, 83 N.H. 160, 164.

New trial.

All concurred.