116 A.2d 890
No. 4436.Supreme Court of New Hampshire Strafford.Argued September 6, 1955.
Decided September 28, 1955.
In a petition for declaratory judgment to determine coverage under a policy of motor vehicle liability insurance as to those operating the vehicle with the insured’s consent certain findings relating to a practice in general of exchanging drivers where motor vehicles are loaned to others did not establish approval of any such practice by the insured under the existing circumstances.
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Nor did the findings in such case entitle the plaintiff to judgment in view of a further finding that the insured was never specifically informed of such a practice, and the absence of findings which would establish implied consent to operation by the person driving when the accident occurred.
PETITION, for declaratory judgment to determine the liability of an insurer under a motor vehicle liability policy. The facts which gave rise to the petition are stated in Hinchey v. Surety Company, 99 N.H. 373. Following the opinion there reported, the plaintiffs filed certain motions with both this court and the Trial Court by which they sought to establish the contention previously made in this court that the “actual use” of the automobile, while O’Rourke was driving, was with the permission of the insured because “O’Rourke had implied permission to go in the car as a passenger whenever it was loaned to others; and because `[the insured] approved the custom of swapping drivers’ whenever the car was loaned and thereby impliedly consented to the operation of the car by . . . O’Rourke.” Hinchey v. Company, supra, 379.
By one of these motions, filed in the Superior Court, the plaintiffs sought a finding that “Sellers knew of the practice of the swapping of drivers” contrary to what was previously considered to be the implied finding of the Trial Court. Hinchey v. Company, supra, 380. By the same motion the plaintiffs further sought to reopen the case for receipt of testimony by O’Rourke, whose testimony at the first hearing was presented by deposition. At a hearing upon the motion held on April 15, 1955, the Trial Court made the following additional finding: “that Sellers was never specifically informed by any of the persons to whom he had loaned the car that they were exchanging drivers, but that the exchange of drivers by people using a car where one person takes a car with several people as passengers who are drivers is such a common occurrence that Sellers, whether or not he was specifically informed that such an exchange was going on, probably knew or should have known that such exchange, of drivers occurred when he loaned the car, and that his consent to the use of a car by one person was not in any way affected by passengers who went with the person to whom he had loaned the car acting as drivers.”
In response to the inquiry of plaintiffs’ counsel as to whether the finding meant “in effect that by loaning the car to one person he was consenting to the exchange of drivers if he knew others were going,” the Court replied: “I don’t mean anything beyond what I
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said by that finding”; and to the suggestion that consent in loaning the car was “consent to the exchange of drivers when he knows that others are going,” the Court replied: “That isn’t quite what I said and that isn’t quite what I mean.”
The plaintiffs’ motion to reopen was denied by the Court “on the basis that I do not think it would be of any further assistance to me in making further findings of fact here.” Thereafter on May 2, 1955, the plaintiffs filed in this court a “motion for rehearing” of the issues decided by this court on February 25, 1955 (Hinchey v. Company, supra) which was denied.
On June 16, 1955, at a hearing before the Trial Court upon a proposed final decree, the plaintiffs again renewed their contention “that the operation of the car by O’Rourke . . . was impliedly permitted by Sellers,” and their request for leave to present O’Rourke’s testimony. Subject to their exception the Trial Court “rule[d] against” the plaintiffs, commenting that “it appears to me that the additional finding of fact did not change the result of the Supreme Court’s decision as far as I am concerned.”
The pending reserved case, transfers the plaintiffs’ exceptions to the ruling “that the decree was in conformity with the Supreme Court’s decision and the. Superior Court’s findings of fact” and to the ruling denying the “motion to reopen for the purpose of presenting the evidence of O’Rourke in person.” Reserved and transferred by Griffith, J.
Burns, Calderwood Bryant (Mr. Bryant orally), for the plaintiffs.
Devine Millimet (Mr. Millimet orally), for the defendant company.
DUNCAN, J.
The original findings of the Trial Court contained no finding “that Sellers approved the custom of swapping drivers” (Hinchey v. Surety Company, supra, 379), but implied a finding that he never knew of such a practice. Id., 380. In support of their exception to the ruling of the Trial Court approving the proposed final decree, as in conformity with the findings of that Court and the decision of this court, the plaintiffs now assert that the additional finding of April 15 “establishes that Sellers consented to the exchange of drivers by persons in his car”; and that since
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“O’Rourke had implied permission from Sellers to go as a passenger . . . at any time” he therefore “had implied permission . . . to drive the car when he went as a passenger” which was never revoked by any communication to him.
The issue of implied consent arising out of a “prior course conduct of [Sellers and O’Rourke] evidencing their mutual understanding” (Standard c. Ins. Co. v. Gore, 99 N.H. 277, 282), was never squarely presented to the Trial Court by any request findings or rulings before the first transfer to this court. However, the record indicates that following remand of the case it was clearly presented by the plaintiffs’ motion for additional findings and by their arguments in support thereof, and at the hearing on the proposed final decree. The record further establishes that the additional finding made by the court was not intended to be adoption of the plaintiffs’ contention.
At the April 1955 hearing, the Trial Court twice declined to amplify or revise his additional finding that Sellers had no actual knowledge of any practice of exchanging drivers, or his concluding finding that Sellers’ consent to use of the car (by Petell) “was not in any way affected by passengers who went with the person to whom he had loaned the car acting as drivers.” While the, meaning the quoted findings is obscure, in the light of the comments of the Court in the course of the hearing it may be taken to relate to the issue of the scope of permission given to. Petell rather than to the issue of implied consent to driving by O’Rourke.
As the case rests, no finding has been made that Sellers approved of any practice of exchanging drivers, but on the contrary it has been found that he had no actual knowledge of any such practice. There has been no finding that O’Rourke had implied consent to go passenger in the automobile whenever he wished, or to drive upon occasions when he was a passenger and Sellers was absent. The consequence is that the plaintiffs’ position is in no wise improved since no decree in favor of the plaintiffs could be entered upon the findings. Much less can such a decree be held to be required as a matter of law. It follows that there was no error in entering the decree discharging the defendant company of any obligation to defend O’Rourke, or to satisfy any judgment in the plaintiffs in the pending actions.
Denial of the plaintiffs’ motions to present the testimony O’Rourke in person was within the discretion of the Trial Court. Croteau v. Harvey
Landers, 99 N.H. 264, 266.
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It is our opinion that the plaintiffs’ contentions are foreclosed by the record and their exceptions are overruled.
Judgment for the defendant company.
All concurred.