Summary
In Maryland Casualty Co. v. Lamarre, 83 N.H. 206, 140 A. 174, it was held that in the absence of such a provision in the policy, the failure to co-operate did not bar liability.
Summary of this case from Roberts v. Central Mut. Ins. Co.Opinion
Decided January 3, 1928.
A wife may maintain an action against her husband for negligence.
A policy of insurance against liability for negligence in driving an automobile will not be canceled when there is no evidence of collusion on the part of the assured to bring about an accident or to produce the injuries for which a passenger has sued him. And if the policy contains no provisions requiring his aid and assistance in defending actions or restricting his conduct in respect thereto he is under no implied obligation to discourage the bringing of a suit for a just cause against him by his injured wife or to withhold from her any information bearing on the issues raised by such an action, nor to refrain from arranging for the attendance of witnesses possessing knowledge of material facts, nor from testifying that his negligence, due to intoxication, caused the accident, or as to his wife's sufferings.
The issue being whether the assured in what he did in the preparation and trial of the action of his wife acted honestly and in good faith in the promotion of justice, an affirmative finding will not be disturbed because of his confessing desire that his wife should receive a verdict and stating that she deserved it.
A finding by the trial court that there was "collusion" between parties only "in the sense and to the extent" of certain facts thereinafter detailed is not intended as a general finding of fraud but is apparently made only to enable the parties to raise the question of law whether the enumerated facts constitute fraud in law.
BILL IN EQUITY, for the cancelation of an automobile liability policy, to restrain recovery thereon and to temporarily enjoin further trial of an action at law brought by an injured passenger against the insured; the alleged grounds for equitable relief being conspiracy, fraud and collusion at the trial of said action. Hearing by the court, and dismissal of the plaintiff's bill.
The policy was issued by the plaintiff company to the defendant, George Lamarre, insuring him, inter alia, against loss from liability imposed by law for damages on account of bodily injuries, accidentally suffered or alleged to have been suffered by any person, caused by any automobile owned by the assured while operated by him for private purposes including "personal pleasure and family use." The defendant, Eugenie Lamarre, the wife of the insured, having suffered an injury within the terms of the policy, brought the suit sought to be enjoined. The action was tried by jury and defended by the company, with a verdict for the plaintiff. It appears to be conceded that there was a mistrial.
The issue in equity was submitted upon the bill and answer and transcript of the evidence in the action at law. Upon consideration thereof the court found the following conduct on the part of the assured: that he encouraged the prosecution of the wife's suit against him; testified at the trial that he drank intoxicating liquor, giving the general impression that he was under its influence at the time of the accident and that his condition caused or contributed to cause it; admitted his liability, and described his wife's suffering and disability; stated that he had no property to satisfy a judgment; expressed the hope that his wife would recover a substantial verdict, and his expectation that the insurance company would pay; and conceded that he and his wife were living together as pleasantly as before the accident. The court further found as a fact that "there was collusion with respect to the litigation in the sense, and to the extent that, the defendant [George] made it as easy as possible for his wife to recover a verdict against him, assisted in arranging for the attendance of witnesses, and said he would be glad if she got a verdict, knowing that in that event he could not pay, and believing that the insurance company would pay." The court ruled as a matter of law "that the wife has a right to sue her husband; that the husband as a witness has the right to admit that he was at fault, and therefore liable." The court accordingly denied the plaintiff's prayer, and ordered its bill dismissed.
Further facts appear in the opinion. A bill of exceptions was allowed by Young, J., upon the plaintiff's exception to the ruling of the court that the prayer of its petition be denied.
Timothy F. O'Connor and Myer Saidel (Mr. Saidel orally), for the plaintiff.
Banigan Banigan (Mr. Edward W. Banigan orally), for the defendant.
No question as to the correctness of the pleadings is raised. There was no evidence of collusion to bring about the accident or to produce the injuries. The contrary is found. The issue presented at the hearing was solely upon the insured's alleged fraudulent conduct as respects the litigation.
By the terms of the policy the company undertook the investigation of accidents covered thereby, and the defence of suits thereon. The policy contained no express provisions requiring the aid and assistance of the assured therein, or restricting his conduct in respect thereto. His active and passive obligations were such only as were to be implied from the relation created by the contract. The insured was under no implied obligation to resent or discourage the bringing of a suit for a just cause against him by his injured wife, or to withhold from her, or her attorneys, any information bearing on the issues raised by such an action. If he was drunk or negligent he had the right to tell them so, and a duty to so testify when inquiry was made at the trial. He was under no implied agreement to refrain from arranging for the attendance at the trial of witnesses who possessed knowledge of material facts, nor when called as a witness, himself, from testifying to his wife's sufferings.
The plaintiff's bill, however, is founded, not upon any supposed breach of contract, but upon the alleged fraudulent conduct of the insured in producing a verdict by collusion with his injured wife. The contractual relations of the parties are, therefore, important only as they afford aid in the interpretation of such conduct. The issue at the hearing was whether or not, in what he did in the preparation and trial of the action at law, the insured acted honestly and in good faith in the promotion of justice. This presented a question of fact upon which the finding of the court was conclusive if there was evidence to support it.
That the wife suffered a serious injury seems to have been conceded. That it was due to the act of the insured was undisputed. There was evidence besides his testimony that he had been drinking intoxicating liquor, and the circumstances of the accident tended strongly to show that his mismanagement of the car was due thereto. The testimony of other witnesses tended to support the conclusion that his wife's injury was caused by his negligence. That he honestly so believed is a fair inference from all the evidence.
The insured's confessed desire that his wife would receive a verdict is relied upon as proof of fraud. The insured was called as a witness by the plaintiff. In, response to several leading questions on cross-examination by the counsel for the company as to whether he would be glad if his wife were to receive a verdict he reluctantly replied in the affirmative, stating that she deserved it. This expressed wish for his wife's success, and declared confidence in the merits of her case, did not constitute conclusive proof of fraud, but like other conduct tending to favor his wife's suit were merely evidentiary facts bearing on his honesty.
The plaintiff's position is necessarily based upon a claim either that the court has found as a fact that the insured's conduct was fraudulent, or that the facts reported conclusively disclose his fraud. The claim can be sustained in neither respect. The contention that the court has found collusion as a fact is based upon a misinterpretation of the language employed and requires little attention. The use of the word "collusion," evidently borrowed from the plaintiff's allegations, was perhaps unfortunate and misleading. That it was not intended, however, to include a finding of fraud, which the word in its more common use connotes, is made evident by the court's express qualification, namely, "in the sense, and to the extent that, the defendant [the insured] made it as easy as possible for his wife, to recover a verdict against him, assisted in arranging for the attendance of witnesses, and said that he would be glad if she got a verdict, knowing that in that event he could not pay, and believing that the insurance company would pay." The apparent purpose of the court was to enable the plaintiff to raise the question of law whether the enumerated facts constituted fraud in law. The statement in question, therefore, amounted to no more than a recital of facts, the force of which has already been considered. That a finding of fraudulent conduct was not intended is further supported by the court's conclusion that the prayer of the plaintiff's petition should be denied.
No error appears in the court's ruling. As there is neither a finding of fraud, nor conclusive evidence thereof, the order dismissing the plaintiff's bill must be sustained.
Exceptions overruled.
All concurred.