190 A. 704
Supreme Court of New Hampshire Coos.
Decided March 2, 1937.
An endorsement upon a liability policy providing that “the coverage provided herein to a person responsible for the operation of the Named Insured’s motor vehicle with his expressed or implied consent is extended to uses authorized by such person whether or not the particular use was authorized by the named Assured”, does not give coverage beyond the uses authorized by the express or implied consent of the named assured. Certain evidence was insufficient to warrant a finding that a motor bus at the time of a collision was being operated by the driver with the express or implied consent of his employer.
ACTIONS OF CASE, for negligence, to recover for personal injuries sustained in a collision between a motor bus owned by the Interstate Passenger Service and driven by the defendant Daniel Monroe, which occurred at Bethlehem on September 11, 1935, and PETITION for a declaratory judgment, to determine the rights of the parties under an automobile liability insurance policy issued by the petitioner to the Interstate Passenger Service. There was a trial of the tort actions by jury resulting in verdicts for the plaintiffs. In each case the Interstate Passenger Service moved for a directed verdict on the ground that the plaintiffs “had shown no agency on the part of driver Monroe” at the time the accident occurred. These motions were denied subject to exception.
The issue raised by the petition was submitted to the presiding justice, who found “that Monroe took the automobile bus with the consent of the Interstate Passenger Service and that the petitioner’s policy covered the accident.” To this finding the petitioner excepted. Transferred by Lorimer, J.
Bernard Jacobs (by brief and orally), for Lena K. Smith and Pearl K. Wheeler.
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Frank P. Blais and Crawford D. Hening (Mr. Hening orally), for the Central Surety and Insurance Corporation and for the defendants in the tort actions.
MARBLE, J.
The Interstate Passenger Service operated a motor bus between Dover and Littleton. This bus was scheduled to reach Littleton in the evening and to leave there on the following morning. Ordinarily the driver of the bus parked it at night in the “city parking space” at Littleton, but on the evening of the accident he decided to spend the night at a tourists’ resort, situated about a mile east of Twin Mountain, where he had stayed on a few previous occasions. While driving toward that point he collided with an automobile, causing the injuries for which the plaintiffs in the tort actions seek recovery.
The material portion of his testimony, which is the basis of the court’s finding, is as follows: “Q. Were you authorized to drive your automobile at any other place beyond the destination of Littleton? A. I have no authorization, no. . . . Q. Did your company know that you were going to Twin Mountain that night? A. They didn’t . . . . Q. Where did you keep your car? A. Up in the city parking space. Q. And sometimes you kept it there, and they left it to your discretion, didn’t they? A. Yes. Q. Yes, you could leave the car wherever you deemed it advisable? A. Well, except, — as long as it was in Littleton, yes. . . . Q. As a matter of fact, as far as your employers were concerned, . . . it didn’t make any difference to them whether you stayed in one town or another town? A. Oh, it did. Q. It did make a difference? A. Yes. Q. Will you tell us how you know that it did? A. Because I had orders to go to Littleton and stay there over night and come back in the morning. Q. You had orders to go to Littleton and to start from Littleton to go back, and isn’t that exactly what your orders were, and nothing else? A. Well, yes, to start from Littleton in the morning. Q. And whether or not you crossed the town line into Lisbon or into Bethlehem or into Dalton didn’t mean anything, so far as you know, to your concern, did it? A. I certainly knew it did, yes. . . . Q. Were you on the company’s business that night, — of any kind? A. Oh, no, sir.”
On this evidence it could not be found “that Monroe took the automobile bus with the consent of the Interstate Passenger Service.”
The policy issued by the Central Surety and Insurance Corporation to the Interstate Passenger Service contained the following provision: “The coverage provided herein to a person responsible for the operation
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of the named insured’s motor vehicle with his expressed or implied consent is extended to uses authorized by such person whether or not the particular use was authorized by the Named Assured.”
It has been very recently held that uses authorized by the express or implied consent of the named assured are the limits of coverage under this particular provision. Travelers Ins. Co. v. Greenough, ante, 391. The present case is therefore governed by the rule of Sauriolle v. O’Gorman, 86 N.H. 39.
No question relating to the liability of Monroe, who is joined as a defendant in the tort actions, has been raised. It is assumed that as against him the plaintiff in each action is entitled to judgment on the verdict.
Exceptions sustained.
All concurred.