Calvin McCutcheon v. Roy H. Leonard

• Decision Date: 03 October 1944
• Citation: 39 A.2d 348,114 Vt. 38
• Parties: CALVIN McCUTCHEON v. ROY H. LEONARD
• Court: Vermont Supreme Court

39 A.2d 348

114 Vt. 38

CALVIN McCUTCHEON v. ROY H. LEONARD

Supreme Court of Vermont

October 3, 1944

May Term, 1944.

Error from Informing Jury that Insurance Company is Defending Case.

1. The allowance of amendments to pleadings rests in the judicial discretion of the trial court; its ruling thereon will not be disturbed unless it appears that the trial court failed to exercise its discretion or that its discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.

2. It is reversible error to needlessly bring to the attention of a jury the fact that an insurance company is defending the case; and this is true whether such information comes from counsel or from the court itself.

ACTION under P. L. 3400 for damages arising from failure of officer to return attached automobile. Rutland County Court September Term, 1943, Hughes, J., presiding. Judgment for the plaintiff.

Judgment reversed and cause remanded.

Edward G. McClallen, Jr., and George M. Goddard for the defendant.

Lawrence & O'Brien for the plaintiff.

Present MOULTON, C.J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS JJ.

OPINION

BUTTLES

This action is brought against the defendant as former Sheriff of Rutland County, under P. L. 3400, for the failure of his deputy to return an attached automobile, after dissolution of the attachment, to the plaintiff who is claimed to be the owner and entitled to the possession thereof. The case has been here before. See, 112 Vt. 172, 22 A.2d 186. We there held that it was error to grant the plaintiff's motion for judgment upon the pleadings as they stood after the filing of the defendant's answer, and the case was remanded. A. subsequent trial by jury resulted in a verdict and judgment for the plaintiff in the sum of $ 600. The defendant comes to this Court upon two exceptions.

In his declaration the plaintiff averred that the defendant's deputy attached, as the property of the plaintiff, a certain Dodge express truck automobile "of great value, to wit of the value of six hundred dollars. " The defendant's answer expressly admits all averments of the declaration except one which relates to the alleged duty of the deputy sheriff to return the attached automobile to the possession of the plaintiff.

When the case came on for trial, following the remand, the defendant moved that he be allowed so to amend his answer as to exclude the averment as to value from that portion of the declaration which was admitted by the answer, contending that the statement of value was excessive and fictitious and that the admission had been made through inadvertence and mistake. The plaintiff objected on the ground of surprise, stating that he was prepared at that time to try only the issue of the ownership of the car. The defendant's motion was denied and he has briefed an exception to such denial. That the allowance of the proposed amendment rested in the judicial discretion of the trial court is not questioned. P L. 1579. Schlitz v. Lowell Mut. Fire Ins. Co., 96 Vt. 337, 342, 119 A. 513. The pleading in which the admission occurred was filed with the Clerk on August 15, 1940, and so far as appears no attempt was made to correct the claimed mistake until trial of the case was about to begin at the September, 1943, term of court. In the meantime the case, as before stated, had been before this Court and in the opinion filed Oct. 7, 1941, we stated that certain facts were admitted by the defendant in his answer, among the facts so admitted being that on July 26, 1939, the deputy sheriff "attached a certain Dodge express truck automobile as the property of the plaintiff, this truck found in his possession and being of the value of to wit six hundred dollars." McCutcheon v. Leonard, 112 Vt. 172, 173, 22 A.2d 186, 187. Under the circumstances here appearing it cannot be said that the trial court failed to exercise its discretion or that its discretion was exercised on grounds or for reasons clearly untenable, or to an extent clearly unreasonable,...