Summary
concluding that a jury issue existed concerning whether standard automobile policy afforded coverage to owner of truck alleged to have negligently caused employee driving following truck to speed and collide with third party vehicle
Summary of this case from Martinez v. CitizensOpinion
No. 4813.
Argued April 5, 1960.
Decided April 29, 1960.
1. In an action for damages resulting to the plaintiff when his motor vehicle was struck by a truck operated by defendant's employee the evidence warranted the finding that the employer who operated another vehicle preceding the employee, by piloting and hand signaling so influenced his employee in operating the truck as to cause him to travel at speed unreasonable under the circumstances and thereby caused or contributed to cause the accident.
2. Since the jury could find on such evidence that the employer's conduct was an inducing cause of his employee's negligence, both as to speed and failure to keep a lookout for vehicles entering the highway, the conclusion that the employee's negligence was a superseding cause of the accident was not required as a matter of law.
3. Where the jury could find under the instructions given that defendant's employee had the last clear chance to avoid the accident, contributory negligence on the part of the plaintiff is no bar to the action.
4. If a decedent's conduct admits of any reasonable and nonculpable explanation the question of his due care is for the jury.
5. Where the insured vehicle was being used by the insured employer to regulate or pace the speed of a following vehicle operated by his employee and it could be found that such use accounted both for the speed of the latter vehicle and its presence at the intersection where it collided with plaintiff's vehicle and that such speed was unreasonable and imprudent and the lookout inadequate as the result of the control exercised by the employer, the damages suffered by the plaintiff could properly be found to have originated from or arisen out of the use of the insured vehicle within the meaning of the liability insurance policy.
6. Damages caused by accident may be found to have arisen out of the use of the insured vehicle within the meaning of a liability policy if the use was connected with the accident or created a condition that caused the accident, and the fact that the insured vehicle exerted no physical force upon the following vehicle which was the immediate cause of the damage or was not itself in physical contact with the plaintiff or his vehicle does not render the policy inapplicable.
7. The procedure adopted by the Trial Court of submitting the issue of control by the defendant of the insured vehicle operated by his employee to the jury in the law action rather than to a jury which could previously have been impanelled in the declaratory judgment proceedings to determine coverage was not an abuse of discretion.
CASE, for negligence, by an administrator, to recover damages arising out of the death of his intestate as the result of a motor vehicle collision on April 9, 1955, at Hooksett; and PETITION, for declaratory judgment brought by the insurer of a 1953 GMC pickup truck owned by the defendant. Bergeron, to determine the insurer's rights and obligations under its policy with respect to the pending action.
The accident which gave rise to these actions occurred at about 4 P.M. on Route 3 in Hooksett, just south of the junction with Route 28. A 1948 Ford 2-ton truck owned by the defendant Bergeron and operated by his employee, the defendant Manninen, in the transportation of two work horses belonging to the former, collided with an unregistered 1935 Ford pickup truck operated by the decedent. Manninen was proceeding south on Route 3 while the decedent was crossing Route 3 in a northeasterly direction from the Pine Valley Motor Court toward a filling station on the opposite side of the highway. There was evidence that the truck operated by Manninen had been preceded for some distance by the GMC pickup truck operated by Bergeron which the plaintiff company insured; and that just before the collision the lead vehicle was approximately four-tenths of a mile beyond the intersection, as the truck carrying the horses was coming through it.
The plaintiff administrator's writ, as amended, contained three counts. The first alleged that Bergeron was negligent in permitting and requiring Manninen to operate his truck, knowing that the latter was inexperienced and incompetent to operate and control the same with a load of live horses. The second count alleged that the defendant Bergeron "did personally control the operation and speed of the. . . truck [involved in the collision] by proceeding . . . ahead . . . and by hand signals ordering and requiring his employee to regulate the speed of the truck carrying the horses at . . . an excessive and unreasonable speed . . . which contributed to cause the accident . . . ." The third count alleged that Bergeron as employer, was liable for the negligent conduct of his employee, Manninen.
The petition for declaratory judgment was heard by the Superior Court (Griffith, J.) in advance of trial of the law action, and rulings were made, subject to the exception of the insurer, that it was required to defend its insured by reason of the allegations of the second count of the plaintiff administrator's writ, and that it would "be necessary to submit to the jury [on trial of the law action] a question or questions for a special verdict in that action depending upon the evidence . . . to determine whether or not defendant Bergeron is liable under Count 2." The insurer's exception to these rulings, together with its exceptions taken on trial of the law action and relating to issues presented by the second count of the writ, were reserved and transferred by the Trial Court.
The law action was then tried with a companion action by the administrator against Manninen, and an action for property damage against the latter brought by the owner of the vehicle operated by the decedent. Trial was by jury, with a view, and a verdict in the sum of $11,000 was returned for the plaintiff. The exceptions of the defendant Bergeron taken in the course of the trial to the denial of his motions for a nonsuit, for a continuance, for a mistrial, to withdraw certain issues from the jury, to the denial of requests for instructions, to certain instructions given, to the denial of his motion to set aside the verdict, and to other rulings were reserved and transferred by the Presiding Justice (Morris, J.).
The Trial Court submitted to the jury three questions based upon the three counts of the writ. The second question, which gives rise to the issues transferred to this court, was as follows: "Did the defendant Bergeron at the time of the accident resulting in the death of the plaintiff's decedent personally control the operation and speed of the motor vehicle operated by his employee by ordering and requiring his employee to regulate the speed of the truck carrying the horses at the same speed at which Bergeron operated his pickup and thereby imposing an excessive and unreasonable speed by the employee's operation of the truck carrying the horses, and did this cause or contribute to cause the accident resulting in the death of the plaintiff's decedent?" The question was answered by the jury in the affirmative.
Other facts appear in the opinion.
McLane, Carleton, Graf, Greene Brown (Mr. Brown orally), for the administrator.
Wiggin, Nourie, Sundeen, Nassikas Pingree and Dort S. Bigg (Mr. Bigg orally), for Bergeron and Peerless Insurance Company.
Devine, Millimet McDonough for Bergeron and Manninen, furnished no brief.
As insurer of the GMC pickup truck which was some distance beyond the scene when the collision occurred, Peerless Insurance Company advances two principal contentions: first, that the Trial Court erred in submitting the case to the jury under the second count of the writ, and in particular in submitting the special question based on that count; and second, that its policy furnishes no coverage to Bergeron even if it could properly be found that his negligence in controlling the operation and speed of the truck operated by his employee caused or contributed to cause the accident.
I. In support of the first of these contentions, it is argued that there was no evidence to warrant a finding that Bergeron attempted to or in fact did control the speed of the truck operated by Manninen, or that the speed of this truck was excessive or contributed to cause the accident. It is also argued that as a matter of law the negligence of Manninen was in any event a superseding cause of the collision; and further that the decedent was contributorily negligent as a matter of law, and the administrator's action is therefore barred.
The defendant Bergeron testified that the horses were loaded upon the truck operated by Manninen in Danbury, and that he followed in the pickup truck as far as Potter Place, where he "took the lead," having satisfied himself that the horses were riding well. Manninen had been in his employ only four days, and this was the first time that he had transported livestock for Bergeron. Bergeron testified that on two different occasions before reaching Boscawen, he stopped and signaled Manninen to pass. He testified that from Penacook to Concord he followed the other truck, and that at the south end of Main Street in Concord he passed it and proceeded on his way to Wilton, without again seeing it.
It could be found from the testimony of Manninen however, that Bergeron did not leave him until Manninen reached the intersection of Routes 3 and 28 in Hooksett. He testified that as he slackened his speed for the intersection, Bergeron "was just going around the corner" some two thousand feet ahead. It could be found from Manninen's testimony, both on deposition and at the trial, that the two vehicles had traveled at an average speed of thirty-five to forty miles an hour along the route, with Bergeron "trying to get [him] to go a little bit faster. . . [by] motioning [him] to come on." On deposition he testified that this procedure continued "practically all the way coming down." At the trial however he testified that "from Concord down he [Bergeron] left me alone." He then conceded however, that Bergeron did not leave him until he reached the intersection in Hooksett, and that it was his recollection when his deposition was taken that "Bergeron had been shepherding [him] along all the way down and was just going around the corner at about the time the accident took place."
The collision occurred, according to Manninen's testimony, after he first saw the Carter truck crossing the highway, thirty to thirty-six feet ahead, at which time he turned toward his left to go ahead of it. He testified that he applied his brakes, but not "to the full extent that [he] probably should have," and collided with the forward part of the Carter truck in the center lane of the three-lane highway, from where his truck continued to the lefthand shoulder of the highway. The horses were thrown from the truck, the Carter truck was spun about toward the south and, Carter was precipitated onto the highway.
There was evidence that at a speed of forty miles an hour, which could be found to have been Manninen's speed, Manninen could have avoided the accident had he applied the brakes one hundred feet from the point of impact, and that he probably could have avoided it even if he did not see the truck until he was within forty feet of it.
From this and other evidence, the jury was warranted in finding that Bergeron's conduct in acting as pilot for Manninen so far influenced Manninen in the operation of the truck as to cause him to travel at a speed which was unreasonable under the circumstances and thereby caused or contributed to cause the accident. It could likewise reasonably find that Bergeron's conduct was an inducing cause of Manninen's negligence, both as to speed and failure to keep a lookout for vehicles entering the highway. See Thelen v. Spilman, 251 Minn. 89; anno. 48 A.L.R. (2d) 252. Hence, a finding that Manninen's negligence was a superseding cause of the accident was not required as a matter of law.
The insurer argues that the jury's disbelief of Manninen's testimony that Bergeron "left him alone" after they reached Concord does not warrant a finding that Bergeron exercised any control over Manninen's speed beyond that point. Bissonnette v. Cormier, 100 N.H. 197, 199. Manninen himself however contradicted the testimony which he gave in this respect. He acknowledged that Bergeron "was still trying to make [him] speed up but [he was] unwilling to drive at that speed through the intersection," and later agreed that "we did establish . . . it was your recollection at the time of the deposition that Mr. Bergeron had been shepherding you all the way down and was just going around the corner [when] the accident took place." If there was no affirmative evidence that Bergeron actively urged Manninen forward after they both had passed the intersection still the jury could find upon Manninen's testimony that he increased his speed as he came out of the intersection, and that when the collision occurred his speed was higher than it should have been. It could also properly infer that this was due to Bergeron's prior conduct, as a continuing factor in prompting Manninen's haste.
In short, we are of the opinion that there was no error in submission to the jury of the issue presented by the second count of the writ, and that the jury's answer to the question based thereon finds support in the record.
The evidence regarding the care exercised by the decedent does not require a different conclusion. If the jury found under instructions given that Manninen had the last clear chance to avoid the accident (Clark v. Railroad, 87 N.H. 36), then contributory negligence on the part of Carter was no bar to the action. Stocker v. Railroad, 83 N.H. 401, 403. See Tyrrell v. Railroad, 77 N.H. 320. Further, the burden of establishing contributory negligence was upon the defendant. No witness at the trial could describe the decedent's conduct in any detail, but evidence was received of his custom of stopping some seventeen to twenty feet from the highway, and looking both ways before proceeding. There was no evidence as to whether or not he had stopped a second time at the edge of the traveled way, where his view of southbound vehicles may have been partially obscured by a sign in front of the motor court. It is settled law that if a decedent's conduct "admits of any reasonable and nonculpable explanation, the question of his due care is for the jury." Jones v. Railroad, 83 N.H. 73, 78.
If the jury found that Manninen slackened his speed as he came into view and thereafter speeded up, it could find that the decedent committed an excusable error of judgment in concluding that he could cross in safety ahead of the southbound truck. MacKelvie v. Rice, 92 N.H. 465. We conclude that the issue of contributory negligence, and its effect upon the plaintiff's right to recover was properly left for determination by the jury. Lamontagne v. Railway, 97 N.H. 6, 10.
II. The second issue, of whether the liability policy insuring the GMC pickup truck operated by Bergeron requires the insurer to satisfy any judgment against him within the limits of the policy, turns upon the provisions of the policy itself. The insurer undertook to insure the owner of the GMC pickup truck against liability for damages because of personal injury or death caused by accident "and arising out of the ownership, maintenance or use of" the vehicle.
It is argued that the insured vehicle did not itself produce the injury; that the accident was not "within [its] natural territorial limits"; and that it did not arise out of the vehicle's inherent nature "as such." See, 7 Appleman, Insurance Law and Practice 86, s. 4317. It is urged that some "physical" relation between the truck and the accident is a requisite, and that the administrator's contention that his intestate's injuries arose out of "use" of the pickup truck, within the meaning of the policy, is not only ingenious but fantastic.
The circumstance that the insured vehicle was not in collision with the decedent's truck, and that it was at most merely a "platform" from which the insured is claimed to have signaled to the operator of the truck which immediately caused the injuries, does not conclusively establish that the injuries did not "arise out of the . . . use" of the insured vehicle. In Eastern Transp. Co. v. Liberty Mut. Cas. Co., 101 N.H. 407, the accident was held to have arisen out of use of the insured truck, although it was not being operated when the collision occurred, and there was no physical contact between it and the plaintiff's automobile. "The words `arising out of . . . use' are very broad, general and comprehensive terms . . . ordinarily understood to mean `originating from' or. . . `growing out of' or `flowing from.'" Schmidt v. Utilities Ins. Co., 353 Mo. 213, 218-219. 7 Appleman, supra, s. 4317 (supp.). As was held in Eastern Transp. Co. v. Liberty Mut. Cas. Co., supra, 411, the language of the policy "does not require a finding that the injury . . . was directly and proximately caused by the use of the [insured] vehicle," but only that it arose out of the use.
The evidence in the case now before us warranted a finding that the insured vehicle was being used by the employer to regulate or pace the speed of the following truck operated by the employee. It could be found that this use accounted both for the speed at which the truck operated by the employee was proceeding when the accident occurred and for its presence there at that particular time. If, as could be found, that speed was unreasonable and imprudent, and the operator's lookout inadequate as a result of the control exercised by the employer, the conclusion that the injury originated from or arose out of the use of the insured truck logically follows.
The fact that the insured vehicle was exerting no physical force upon the instrumentality which was the immediate cause of the injury, and was not itself in physical contact with the decedent or his truck is neither decisive of nor fatal to the plaintiff's claim of coverage. See Caron v. American Motorists Ins. Co., 277 Mass. 156; Gen'l Acc. c. Corp. v. Hanley Oil Co., 321 Mass. 72; Fidelity and Casualty Company v. Lott, 273 F.2d 500 (5th Cir. 1960). Cf. Wiebel v. Am. Farmers Mut. Ins. Co., (Del.Super.) 140 A.2d 712. The injury need not be produced by the force of the insured vehicle itself in order to arise out of its use. Red Ball Motor Freight v. Employers Mut. Liability Ins. Co., 189 F.2d 374 (5th Cir. 1951); Hall v. United States F. G. Co., (Ohio App.) 155 N.E.2d 462; Halferty v. Nat'l Mut. Cas. Co., (Kans. City App.) 296 S.W.2d 130. It is sufficient that the use was "connected with the accident, or the creation of a condition that caused the accident . . . ." Wiebel v. Am. Farmers Mut. Ins. Co., supra, 714. The policy issued by Peerless Insurance Company afforded coverage against liability under the second count of the administrator's writ.
We see no error in submitting the issue stated in the second question to the jury drawn to try the law action, rather than to one which might previously have been impanelled in the action for declaratory judgment. The existence of insurance was not disclosed at the trial but would have been apparent had the procedure now suggested been followed; and the parties would have had the expense of two jury trials. The procedure adopted was well within the discretion of the court below.
Exceptions overruled.
All concurred except KENISON, C.J., who dissented as to part II of the opinion.