Gignac v. King, 535
| Docket Nº | No. 535 |
| Citation | 96 A.2d 824, 117 Vt. 563 |
| Case Date | May 05, 1953 |
| Court | United States State Supreme Court of Vermont |
Page 824
v.
KING.
Page 825
[117 Vt. 564] N. Henry Press, St. Albans, for plaintiff.
[117 Vt. 565] Sylvester & Ready, St. Albans, for defendant.
[117 Vt. 563] Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and CUSHING, JJ.
[117 Vt. 565] ADAMS, Justice.
This is an action of tort to recover damages resulting from an automobile accident. The defendant filed a special plea of a discharge in bankruptcy to which the plaintiff demurred. The demurrer was overruled and the plea adjudged sufficient. The plaintiff was allowed an exception and the cause passed to this court for determination on the exception before final judgment pursuant to V.S.1947, § 2124.
We find from the record that the plaintiff by his writ, dated September 28, 1951, brought this action in the Franklin county court against the defendant. The declaration alleged in substance that on October 22, 1949, the plaintiff was the owner of an automobile which he was operating on a certain highway and the defendant was operating an automobile on the same highway in the opposite direction from that in which the plaintiff was traveling; that the defendant carelessly, negligently, grossly, wilfully, wantonly and imprudently operated and ran his automobile onto the left-hand side of the highway in such a manner as to negligently run into the plaintiff's automobile, thereby causing it to be badly damaged. By a second count, the plaintiff claimed damage for medical expenditures because of injuries to his wife, who was a passenger in his automobile. He claimed total damage of $1,500.
The defendant filed a plea alleging in substance, that by a writ dated July 16, 1950, the plaintiff instituted an action against the defendant in the Franklin county court declaring in negligence with the same identical allegations as in the instant case; that following the institution of that action a stipulation was entered into between the plaintiff and defendant which sets forth that the defendant is guilty of the negligent acts as alleged and that the plaintiff is entitled to judgment and to recover as damages $1,000 and costs of $10; that the defendant shall pay the attorney for the plaintiff $5 per week until the foregoing amount is fully paid and that if the defendant shall fail to pay the amount due the plaintiff may have judgment as to damages with costs; that if the stipulation is complied with, the action shall be entered 'Settled and Discontinued' and that said cause may be entered out of time.
The plea further alleged that pursuant to the stipulation, the defendant paid the plaintiff's attorney $45; that on October 26, 1950, the writ was entered with the clerk of the court and that subsequent[117 Vt. 566] thereto, on motion of the defendant, the suit was dismissed because it was not entered in time. Further allegations are, that on September 28, 1950, after the accruing of the cause of action declared on in the writ dated July 16, 1950 and while the stiplation was in full force and effect and payments were being made thereunder, the defendant on his voluntary petition was adjudged a bankrupt by the District Court of the United States for the District of Vermont; that the cause of action declared upon by the plaintiff and also as reflected in the stipulation was and is a debt provable in the bankruptcy proceeding; that it was set...
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Conger v. Gruenig, 1253
...90 Vt. 10, 15, 96 A. 421; Conti v. Johnson & Mann, 91 Vt. 467, 471, 100 A. 874; Potter v. Crawford, 106 Vt. 517, 521, 175 A. 229; Right, [117 Vt. 563] Printing Co. Inc. v. Stevens, 107 Vt. 359, 365, 179 A. 209, 100 A.L.R. 528. On the evidence the jury acting reasonably could have found as f......
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Gignac v. King, 535
...before final judgment. We held the plea sufficient, sustained the order overruling the demurrer and remanded the cause. Gignac v. King, 117 Vt. 563, 96 A.2d After the remand, the plaintiff filed a replication to the plea of a discharge in bankruptcy. The replication alleges in substance tha......
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Hammond v. Brown, 1097
...to the action, for in these matters the burden is not the defendant's. It rests with the plaintiff. As to bankruptcy, Gignac v. King, 117 Vt. 563, 567, 96 A.2d 824; Smith [121 Vt. 334] v. Ladrie, 98 Vt. 429, 431, 129 A. 302; as to the statute of limitations, In re Estate of Delligan, 111 Vt......
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Greenstein v. Singer, 9524
...L.Ed. 1184; In re Levitan, D.C., 224 F. 241; Massachusetts Bonding & Ins. Co. v. Lineberry, 320 Mass. 510, 70 N.E.2d 308; Gignac v. King, 117 Vt. 563, 96 A.2d 824; Frangos v. Frangos, 157 Pa.Super. 87, 41 A.2d 416; Damato v. Ambrose, 122 N.J.L. 539, 6 A.2d The trial justice apparently did n......
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Conger v. Gruenig, 1253
...90 Vt. 10, 15, 96 A. 421; Conti v. Johnson & Mann, 91 Vt. 467, 471, 100 A. 874; Potter v. Crawford, 106 Vt. 517, 521, 175 A. 229; Right, [117 Vt. 563] Printing Co. Inc. v. Stevens, 107 Vt. 359, 365, 179 A. 209, 100 A.L.R. 528. On the evidence the jury acting reasonably could have found as f......
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Gignac v. King, 535
...before final judgment. We held the plea sufficient, sustained the order overruling the demurrer and remanded the cause. Gignac v. King, 117 Vt. 563, 96 A.2d After the remand, the plaintiff filed a replication to the plea of a discharge in bankruptcy. The replication alleges in substance tha......
-
Hammond v. Brown, 1097
...to the action, for in these matters the burden is not the defendant's. It rests with the plaintiff. As to bankruptcy, Gignac v. King, 117 Vt. 563, 567, 96 A.2d 824; Smith [121 Vt. 334] v. Ladrie, 98 Vt. 429, 431, 129 A. 302; as to the statute of limitations, In re Estate of Delligan, 111 Vt......
-
Greenstein v. Singer, 9524
...L.Ed. 1184; In re Levitan, D.C., 224 F. 241; Massachusetts Bonding & Ins. Co. v. Lineberry, 320 Mass. 510, 70 N.E.2d 308; Gignac v. King, 117 Vt. 563, 96 A.2d 824; Frangos v. Frangos, 157 Pa.Super. 87, 41 A.2d 416; Damato v. Ambrose, 122 N.J.L. 539, 6 A.2d The trial justice apparently did n......