Opinion
No. 4684.
Argued November 5, 1958.
Decided December 31, 1958.
1. In a petition for declaratory judgment the parties have a right to trial by jury of the issues presented if the same issues would be so triable when in a common-law action.
2. The issue of whether the insureds failed to cooperate with the insurer and therefore breached a liability insurance policy provision is one of fact which the insurer was entitled as a matter of right to have determined by jury in a common-law action and hence the insurer is entitled to have the verdict of the jury in declaratory judgment proceedings accorded binding effect when supported by the evidence.
3. The statute (RSA 491:16) providing that verdicts of the jury on issues framed and submitted to them in probate appeals and bills in equity are advisory and may be modified or set aside has no application to petitions for declaratory judgment.
PETITION, for declaratory judgment (RSA 491:22) by the plaintiff insurance company seeking determination of its rights and obligations with respect to a policy of liability insurance issued to the defendants Bernard H. Liberi and Bertha M. Liberi, covering premises owned by them in Farmington, New Hampshire. The Court (Wescott, J.) reserved and transferred all questions of law in the following reserved case:
"On November 26, 1947, while in the Liberi home the defendant, Helen A. Liberi, their daughter-in-law, was injured. On October 1953, she brought suit against the insureds for the injuries sustained, and her husband, Bernard H. Liberi, Jr., sued for consequential damages.
"The plaintiff insurance carrier brought a Petition for Declaratory Judgment for a determination of its rights under the policy asking that it be relieved from the defense of the actions, and from paying any judgment which might be rendered against the insureds because of their alleged violation of the terms of the policy in failing to cooperate with the insurance company in the defense of the actions brought by their son and daughter-in-law.
"All the defendants Liberi moved for a jury trial on the issue of coverage raised by the Petition for Declaratory Judgment, and their motions were granted.
"The Court submitted the following question to the jury: `Did Mr. and Mrs. Liberi, Sr. cooperate with the plaintiff insurance company, as required by the terms of the insurance policy?'
"The jury answered the foregoing question in the negative.
"In the trial of the case, the defendants proceeded with their evidence, in accordance with the order of the Court. The plaintiff seasonably moved for nonsuits and directed verdicts which motions were denied and the plaintiff excepted.
"The verdict of the jury was found by the Court not to be satisfactory upon which to base a decree and [it] set the verdict aside with a decree for the defendants, and ordered the plaintiff insurance company to assume the defense and to pay any judgments which might be rendered in the actions at law.
"The plaintiff insurance company excepted to the decree of the Court and moved for judgment on the jury verdict."
Sheehan, Phinney, Bass, Green Bergevin and Richard A. Morse (Mr. Morse orally), for the plaintiff.
O. J. Gregoire for defendants Bernard H. and Bertha M. Liberi, furnished no brief.
Fisher, Parsons Moran (Mr. Moran orally), for the defendants.
Whether the defendants cooperated with the plaintiff as required by the terms of the policy presented an issue of fact. Glens Falls c. Co. v. Keliher, 88 N.H. 253. Evidence indicating non-cooperation was the failure of the defendants to submit a signed statement of the accident from November 26, 1947 until August 19, 1954, when the plaintiff instituted this petition for declaratory judgment and their neglect to mail a statement which they promised in April 1948. There was also evidence of cooperation in that the defendants never refused to talk with the plaintiff's investigators, and that their refusal to sign statements in April 1948 was because they were considered inaccurate. When a written statement was taken on August 10, 1954, they did not sign it until examined by their attorney who forwarded it August 23, 1954, after this declaratory action was brought.
Petitions for declaratory judgment were first authorized by Laws 1929, c. 86, now RSA 491:22. The right to trial by jury of issues presented by such a petition was considered by this court in Employers Assurance Co. v. Tibbetts, 96 N.H. 296. As was then pointed out, the provision of the statute that such actions be presented by "petition" does not make them proceedings in equity for that reason alone; and the parties have a right to trial by jury of issues presented in actions for declaratory relief if the same issues would be so triable when presented in common-law actions. Id., 298.
If there were no provision for declaratory relief in this jurisdiction, the issue submitted to the jury in this case was one which would normally be presented by an action at law by the insureds for breach of the agreement of insurance. Since in such an action the insurer would be entitled as a matter of right to have the issue decided by jury, it was similarly entitled to have the verdict of the jury in the pending petition for declaratory relief accorded binding effect. Dickinson v. General Accident c. Corp., 147 F.2d 396 (9th Cir. 1945). Hence the Trial Court was in error in treating the verdict as advisory and in setting it aside as "not satisfactory upon which to base a decree."
In entering its order the Court apparently proceeded under RSA 491:16, authorizing such action with respect to verdicts upon issues framed and tried by jury "in probate appeals and bills in equity." While under the practice followed in our Superior Courts petitions for declaratory judgment are commonly placed upon the equity docket, they are not "bills in equity" for that reason alone. Employers Assurance Co. v. Tibbetts, supra. The statute relied upon by the Court was not intended to permit it to disregard a jury verdict upon an issue triable by jury as a matter of right in actions other than probate appeals and bills in equity. Gauthier v. Gosselin, 94 N.H. 496. See anno. 156 A.L.R. 1147, 1153-1156.
The defendants argue that the verdict was properly "set aside" because of errors in the instructions relating to the burden of proof. Their exceptions to these instructions have not been transferred, but the instructions appear to have followed the settled law here. Travelers Ins. Co. v. Greenough, 88 N.H. 391; Manter v. Boston c. Ins. Co., 93 N.H. 21, and cases cited; 23 A.L.R. (2d) 1243.
Exception sustained; judgment]or the plaintiff.
All concurred.