Helena Collins v. Chester Fogg

• Citation: 199 A. 251,109 Vt. 433
• Parties: HELENA COLLINS v. CHESTER FOGG
• Decision Date: 03 May 1938
• Court: Vermont Supreme Court

199 A. 251

109 Vt. 433

HELENA COLLINS v. CHESTER FOGG

Supreme Court of Vermont

May 3, 1938

February Term, 1938.

Cause Assumed to Have Been Passed to Supreme Court under P. L 2072---Motion to Set Aside Verdict as to Damages Alone Construed---Motion Addressed to Discretion of Trial Court--- Abuse of Discretion in Granting Motion Not Shown---Point Not Raised Below nor Presented by Bill of Exceptions.

1. Where verdict was set aside as to damages alone on plaintiff's motion and defendant excepted, Supreme Court assumed in absence of showing to the contrary that exception was passed to Court under P. L. 2072 for determination before final judgment, and overruled plaintiff's motion to dismiss on ground that controversy had not ended below.

2. Plaintiff's motion in automobile negligence action to set aside verdict as to damages alone on ground that by undisputed evidence her damage was certain sum was to be construed as meaning that verdict was grossly inadequate in view of undisputed evidence.

3. Plaintiff's motion in automobile negligence action to set aside verdict as to damages alone on ground that by undisputed evidence her damage was certain sum was addressed to trial court's discretion and Supreme Court could not reverse action of trial court in granting such motion unless abuse of discretion or its equivalent affirmatively appeared.

4. In automobile negligence action, where all evidence as to damages came from one witness, who had eleven years' experience as dealer in make of car involved and operator of repair garage, who was familiar with the car and testified it was worth $450 less after accident than before it, etc., and who, for aught that appeared, was credible and had no interest in outcome of case, no abuse of discretion was shown in action of trial court in granting plaintiff's motion to set aside as to damages alone verdict of $200.

5. Supreme Court would not consider as ground for awarding judgment proposition of law not brought before trial court nor presented by bill of exceptions but only presented in brief.

ACTION OF TORT to recover for property damage sustained in automobile accident. Plea, the general issue. Trial by jury in Franklin municipal court, P. L. Shangraw, Municipal Judge presiding. Verdict for the plaintiff. Motion of the plaintiff to set aside the verdict as to damages alone was granted. The defendant excepted. The plaintiff moved to dismiss the exceptions. The opinion states the case.

Judgment affirmed, and cause remanded.

Wm R. McFeeters for the defendant.

J. Boone Wilson, Charles F. Black, Willsie E. Brisbin and Sylvester & Ready for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.

OPINION

SHERBURNE

The plaintiff seeks to recover the damages to her automobile resulting from the alleged negligence of the defendant. A verdict of $ 200 in her favor has been set aside as to damages only and a new trial granted on that issue only. To this ruling the defendant has excepted.

The plaintiff moves here that the defendant's exceptions be dismissed for the reason that the controversy has not ended below and that no full and perfect judgment has been there rendered. The bill of exceptions states, "Exceptions allowed; cause passed to the Supreme Court." Hence we will assume, nothing appearing to the contrary, that the trial court acted under P. L. 2072, and in its discretion passed the exception to this Court for determination before final judgment. In this view of the matter, the question is before us for decision, and the plaintiff's motion must be overruled. Ryan v. Barrett, 105 Vt. 21 162 A. 793; Hannah v. Hannah, 96 Vt. 469, 472, 120 A. 886. This last case, one where the ruling was upon a motion to set aside the verdict before...