Barrette v. Casualty Co. of America

104 A. 126, 79 N.H. 59, 1918 N.H. LEXIS 21

• Court: Supreme Court of New Hampshire
• Decided: June 29, 1918
• Status: Published

Opinion

Young, J.

Dubray, who had contracted to take down an old building and erect a new one, applied to the defendant company’s local agent for insurance against liability to liis employees while doing this work. The local agent transmitted his application to the company’s general agent who informed him (the local agent) that the company would “cover” Dubray. By that was intended ■that the company would protect Dubray or insure him against liability to his employees for all injuries they might sustain which were caused by the usual and ordinary risks of the business named in the application unless and until the company notified him (Du-bray) that it declined to underwrite them. The court has found that the general agent' had aúthority to make this agreement and that the risk incident to using a material-hoist is one of the usual and ordinary risks of the business. Dubray, therefore, was insured against liability for accidents to his employees for a time at least. Whether this insurance had terminated at the time of the accident in question depends on whether the delivery of the policy was notice to Dubray that the company declined to underwrite the risk incident to his employees’ riding on a material-hoist,.for no one contends that the company did anything else to notify him of that fact and the court has found that he did not read the policy until after the accident. The test to determine whether the delivery of the policy was such notice is to inquire whether he was in fault for not reading it. In other words, the questions of law raised by the company’s exceptions to the court’s finding that it is estopped to deny it insured Dubray against liability for the accident in question are whether there is any evidence to warrant the court’s findings (1) that the company was in fault for not notifying him that it would not underwrite the risk in question, and (2) that he was not in fault for not ascertaining it. The evidence relevant to the first issue tends to the conclusion that the company did absolutely nothing to notify Dubray. The evidence relevant to the second issue tends to the conclusion that when the company’s local agent delivered the policy he gave Dubray to understand that it protected him from all liability to his employees while he was doing the work in question. It cannot be said that Dubray was in fault for relying on the agent’s representation or that the ordinary man in his situation would have read the policy to ascertain whether it evidenced the contract he made with the company; and there is no rule of law, written or unwritten, which provides either in terms or by reasonable implication that one who buys insurance is bound by the terms of a policy the company subsequently delivers to him, both when it does and when it does not evidence the contract he made with it. In other words, the evidence warrants the findings that the company was, and that Dubray was not in fault for his not knowing of the exception in the policy and these findings warrant the further finding that the company is estopped to deny that it insured Dubray against liability to the plaintiff for the death of her intestate.

Exception overruled.

All concurred.