H. A. Yandow v. New Amsterdam Casualty Co

Decision Date03 October 1928
Citation143 A. 299,101 Vt. 322
PartiesH. A. YANDOW ET AL. v. NEW AMSTERDAM CASUALTY CO
CourtVermont Supreme Court

May Term, 1928.

Procedure When One of Several Counts in Declaration Is Unsupported by Evidence---Effect Where One of Several Counts Is Good and Supported by Evidence---Premature Judgment.

1. Same results as obtained by directing verdict on count, or counts in declaration not sustained by evidence, where there are one or more other counts in declaration which contain allegations sufficiently proved to justify submission of them to jury may be accomplished by withdrawing count, or counts, not sustained from consideration by jury.

2. Although one or more counts in declaration may not be sustained by evidence, if declaration contains a good count and there is evidence to support it, no judgment can be rendered against plaintiff.

3. Where court directed verdict for defendant on first count of declaration and withdrew that part of case from jury, and trial proceeded on second count alone and resulted in a disagreement, but jury under direction of court before being discharged brought in verdict for defendant based on first count, and judgment for defendant was entered thereon, held that judgment was premature, there being unsettled issues of fact to be determined, and that plaintiff had right to new trial thereon.

ACTION OF TORT. Plea, general issue. Trial by jury at the September Term, 1927, Chittenden County, Graham, J., presiding. Defendant's motion for a directed verdict sustained as to first count. Trial proceeded on second count alone resulting in a disagreement, whereupon prior to its discharge jury under direction of court, brought in a verdict for the defendant on the first count, and judgment was entered thereon. The plaintiff excepted. The opinion states the case.

Judgment reversed, and cause remanded.

George L. Hunt and H. A. Bailey for the plaintiffs.

Lawrence, Stafford and Bloomer for the defendant.

Present: WATSON, C. J., POWERS, MOULTON, and CHASE, JJ., and THOMPSON, Supr. J.

OPINION
CHASE

The plaintiffs brought this suit to recover the damages they claim to have sustained through the negligence of certain attorneys employed by the defendant to defend a suit at law brought against them by one Tucker. That suit grew out of an automobile accident which came within the coverage of a policy of insurance the defendant had issued to the plaintiffs. By its terms the defendant was bound to defend the suit and pay any judgment obtained within the limits of its policy. A first trial of the Tucker suit resulted in a verdict for the plaintiff well within the policy limits. On motion, based on the ground that it was inadequate, this verdict was set aside and the attorneys alleged to have been negligent failed to take timely and effective steps to have that ruling reviewed here. At a second trial which followed in due course, the plaintiff secured a verdict and judgment greatly in excess of the defendant's liability as insurer. These plaintiffs have had to pay this excess and allege such payment as the injurious effect to them of the negligence of which they complain.

The declaration contained two counts. The first set forth the claim of negligence in failing to secure a review of the first trial; the second put in issue a charge of negligence...

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