Indemnity Ins. Co. v. Cannon

Full title: INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. HENRY B. CANNON, JR., a

Court: Supreme Court of New Hampshire Merrimack

Date published: May 6, 1947

94 N.H. 319 (N.H. 1947)

52 A.2d 855

Opinion

No. 3643.

Decided May 6, 1947.

Evidence that the insured drove his car to a garage and requested an employee thereof to drive him home and take the car back to the garage to be serviced justified a finding that such employee was the borrowed servant of the insured.

PETITION for a declaratory judgment under the provisions of R. L., c. 370, s. 20, to determine whether the plaintiff is bound to defend two actions at law, the first brought by Priscilla Hutchinson through her father and next friend Willis C. Hutchinson, against the defendant McFarland, and the second brought by the defendants Willis C. Hutchinson and Emma C. Hutchinson against the said McFarland, by virtue of a policy of liability insurance issued to the defendant Cannon. Trial by the Court (Lorimer, C. J.), who made the following order: "In the above entitled action, petition dismissed — coverage included use of auto by McFarland — petitioner has not waived right to avoid liability under policy — petitioner excepts."

The evidence showed that on June 16, 1937, Mrs. Cannon, wife of the defendant Cannon, drove his car into the city of Concord for the purpose of doing some shopping, and while there, went to the garage of the defendant Mudgett and "asked Mr. McFarland to take her out to the school [St. Paul's School] or to Dr. Russell's right near the school, and bring the car back and have it greased." Mr. Cannon usually had his repair work done at Mudgett's garage and the arrangement which Mrs. Cannon made with McFarland was a customary one. "Sometimes we took the car in and they brought us back; sometimes somebody else would come in with the car and leave the car there." On the way back to the garage McFarland was involved in an accident in which the defendant Hutchinsons were injured.

The policy in question contained the following provision:

"III. Definition of `Insured.' The unqualified word insured . . . includes not only the named insured, but also any person while using the automobile and any person or organization legally responsible for the use thereof . . . provided . . . that the actual use is with the permission of the named insured. The provisions of this paragraph do not apply . . . (c) to any person or organization or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station or public parking place with respect to any accident arising out of the operation thereof."

On July 17, 1936, the effective date of the policy, chapter 54 of the Laws of 1927, was in effect, and attached to the policy was a New Hampshire statutory motor vehicle endorsement which designated the policy as "a motor vehicle liability policy as defined in Chapter 54 of the Laws of the State of New Hampshire 1927 and amendments thereto." This endorsement contained the following provision: "The coverage provided herein to a person responsible for the operation of the named assured's motor vehicle with his express or implied consent, is extended to uses authorized by such person whether or not the particular use was authorized by the named assured."

The defendant McFarland was employed by the defendant Mudgett in his garage, and it was the contention of the plaintiff that he was not covered by the policy by reason of the exclusion contained in paragraph (c) above quoted. It was the contention of the defendants that McFarland "the driver of the car, was acting on behalf of both Mudgett and Cannon."

Devine Millimet (by brief), for the plaintiff.

Sulloway, Piper, Jones, Hollis Godfrey, for the defendant Henry B. Cannon, Jr., filed no brief.

Murchie Murchie, for the defendant Mudgett, filed no brief.

Robert W. Upton, for the defendants, Priscilla Hutchinson, Willis C. Hutchinson and Emma C. Hutchinson, filed no brief.

BRANCH, C. J.

This case is governed by the so-called "borrowed servant" rule which has been stated as follows: "When one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him. In other words, the servant of A may, for a particular purpose or on a particular occasion, be the servant of B, though he continues to be the general servant of A and is paid by him for his work." 1 Labatt, Master Servant, s. 57.

The finding which the Court embodied in its order that "coverage included use of auto by McFarland" presupposes a further finding that, for the particular purpose and on the particular occasion in question, McFarland was acting as the servant of the defendant Cannon. This was a question of fact (Balcus v. Company, 93 N.H. 428, 429) upon which the finding of the Trial Court cannot be disturbed if there is evidence to sustain it. We think that the evidence in regard to the employment of McFarland by Mrs. Cannon is susceptible of the interpretation which the Trial Court placed upon it, and the plaintiff's exception is, therefore, overruled.

Judgment for the defendants.

BLANDIN, J., did not sit: JOHNSTON, J., dissented: the others concurred.