Cavanaugh Bros v. Gen. Accident Fire & Life Assur. Corp.
| Decision Date | 04 March 1919 |
| Citation | 106 A. 604 |
| Parties | CAVANAUGH BROS v. GENERAL ACCIDENT FIRE & LIFE ASSUR. CORPORATION. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County.
Action by Cavanaugh Bros. against the General Accident Fire & Life Assurance Corporation. Verdict for plaintiffs. Transferred on defendant's exception. Exception overruled.
Case for negligence. Trial by jury. Verdict for the plaintiffs. The defendant insured the plaintiff against liability for accidents, and, when one of their horses kicked one Blais, it assumed the defense of his claim.
This action is brought to recover from the defendant the sum of $3,000, which the plaintiffs claim they paid because of the negligence of the defendant in the preparation and manner of conducting the defense.
James E. Banigan, of Manchester, for plaintiffs.
Doyle & Lucier, of Nashua, and Branch & Branch, of Manchester, for defendant.
The evidence warrants the findings that Blais' claim should have been settled and that it might have been settled before suit was brought without calling on the plaintiff for contribution. The defendant, however, made no serious attempt to settle with Blais until matters were in such shape there was nothing else to do, when the case was settled for $6,000. The question therefore raised by the defendant's first exception is whether it owed the plaintiff the duty of settling with Blais before suit, if that was the reasonable thing to do. As to that there can be no question; for, when the defendant assumed control of the Blais claim, it then and there became its duty to do what the average man would do in a similar situation.
The defendant rests its contention as to its second exception on Batchelder v. Railway, 72 N. H. 329, 56 Atl. 752. The conclusion reached in that case rests on the proposition that, if counsel persist in disobeying a ruling of the presiding justice, the court will set a verdict in his favor aside as punishment for his intentional misconduct. In this case, however, it is not found and there is no evidence to warrant a finding that counsel either knew or ought to have known that he was disobeying "the law of the trial" when he made the remarks in question.
Defendant's exception overruled.
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