1 A.2d 817 | Vt. | 1938
When the case was reversed and remanded by this Court, Johnson v.Hardware Mut. Casualty Co.,
The defendant insists that the amended complaint is duplicitous, repetitious, prolix, obscure and uncertain, and for these reasons it should be stricken and expunged in its entirety. But these are faults of form only; and it is expressly provided in the Practice Act that a pleading shall not fail for want of form, and that the sufficiency of pleadings in this respect shall be for the discretionary determination of the trial court. P.L. 1578. We find nothing here warranting further comment.
The defendant vigorously and confidently maintains that the amendments allowed by the court introduce a new cause of action. If the defendant is right in this contention, the amendments were erroneously allowed, for the Practice Act does not protect them. Burleson v. Fox,
It has been thought that the determination of this question of the identity of the cause of action in different counts is attended with some difficulty. But it should not be in this jurisdiction, for it has been passed upon in many cases. We have repeatedly and correctly said that "the true test is whether the proposed amendment is a different matter or the same matter more fully or differently laid." Schlitz v. Lowell MutualFire Ins. Co.,
The defendant, by its policy regularly issued, insured the plaintiff against liability for personal injuries and property damage due to his ownership and use of his automobile. The plaintiff was involved in an accident while driving his automobile and suits for damages were brought against him. Negotiations for a settlement of these suits failed, and a trial in Windsor county court resulted in a verdict much larger than the coverage of the policy, and the plaintiff had to pay out of his own pocket.
It is for the recovery of the sum so paid that the plaintiff brings this suit.
When the plaintiff accepted the policy referred to, he surrendered to the defendant the complete control and management of any suit that might be brought against him for any claim which would involve liability on the part of the company, It was so stipulated in the policy. This is unquestionably so up to the limit of the coverage of the policy, though the plaintiff may have had a right to buy his peace as to any damages above that coverage.
When the company accepted the premium charged for the policy, it impliedly undertook to use this control and management for the mutual benefit of the parties to the contract. Their relations became mutually fiduciary; and each owed the other the duty of the utmost good faith in their dealings together, *491 and in exercising the privileges and discharging the duties specified in and incident to the policy contract. The plaintiff engaged to cooperate with the company if a loss threatened. He was bound to do so honestly and with all good fidelity. The company was equally bound so to handle the Rule case. It had a right to look after its own interests, but it was bound to have due regard for the plaintiff's interests, as well. If in what it did and refused to do it acted honestly and according to its best judgment, this suit must fail. If, on the contrary, it used its authority over the case of Rule v. Johnson, supra, to save itself from as much of the loss as possible, in disregard of the plaintiff's rights, consciously risking loss to the plaintiff to save loss to itself, the suit must succeed; for that would be bad faith, while its relation to the plaintiff demanded good faith. As applied to this case, bad faith on the part of the defendant would be the intentional disregard of the financial interests of the plaintiff in the hope of escaping the full responsibility imposed upon it by its policy.*
This definition is supported by the decisions in Hilker v. WesternAutomobile Ins. Co.,
The issue raised by the defendant's exception to the denial of its motion for a directed verdict was whether there was substantial evidence from which, if believed, and excluding the effect of modifying evidence, the jury could reasonably infer that the defendant acted in bad faith in the manner alleged. Ste. Marie v. Wells,
Under the policy of liability insurance issued by the defendant to the plaintiff the latter was protected against the claim of one person for injuries to the extent of $5,000; if a single accident caused injuries to more than one person the total limit was $10,000, with no more than $5,000 to any one person injured. The property damage was limited to $5,000. In the accident here involved five persons were injured, William Rule and four boys riding with him, and the truck which he was driving was damaged. Rule brought suit against the plaintiff herein and, in accordance with its obligation under its contract, the defendant company undertook and conducted the defense. During the trial an offer was made by the attorneys representing Rule to accept $5,500, which was understood to be in settlement for all the claims, including the property damage, arising from the accident. The offer was refused, the defendant declined to pay more than $3,500 for all claims, the offer was withdrawn and the trial proceeded to verdict and judgment for $14,000 for Rule's claim alone. The bad faith alleged is the refusal to accept the offer of settlement.
Much of the evidence upon the trial now under review was the same that was introduced upon the first trial. In the previous opinion in this cause (
From the depositions of two officials of the company, who had charge of, and authority to settle, the claim, it appeared that the settlement value of the Rule case alone was estimated, by the suits examiner, at $3,000-$4,000, and by the vice-president and *494 claims manager, at approximately $3,500 or at most $4,000. Both witnesses agreed in stating that it was the settled policy of the company never to call upon an insured to contribute anything toward a settlement which was within or equal to the policy limit, and to pay up to the policy limit if there should be a remote possibility that the verdict would equal or exceed such limit. The vice-president deposed that he was anxious to protect the plaintiff to the full extent of the policy and to avoid any possibility that the latter would be personally obliged to pay any sum in excess of the policy.
Do these facts support a reasonable inference of bad faith on the part of the defendant, or do they merely signify an honest mistake of judgment? Bad faith is, of course, a state of mind, indicated by acts and circumstances, and is provable by circumstantial as well as direct evidence. Johnson v. Hardware Mutual Casualty Co.,
It was, as we have seen, the established policy of the defendant to settle a claim rather than to meet the possibility of a verdict beyond the limits of the insurance contract; and in view of this, the failure of the adjuster to inform the home office that such a verdict was not only possible, but expected, was evidence from which the jury could infer that the requisite good faith was not exercised. Such probability, if reported, might well have caused the acceptance of the offer of settlement. The adjuster was the agent of the defendant and his knowledge and conduct were chargeable to his principal. Although he telegraphed to the home office, "if more details needed, wire immediately," no additional information was requested. Good faith required a full report of all facts bearing upon the matter of settlement and a decision based upon all such facts.
In the previous opinion in this cause (
Although some of the other circumstances standing alone might not warrant a finding of bad faith, all of the evidence, taken together, made a question for the jury upon this issue. There was no error in denying the motion for a verdict.
The defendant offered in evidence the depositions of two of its officials, which were received, with the exception of *496 certain parts stricken out upon the plaintiff's motion, subject to the defendant's exceptions.
It is unnecessary to consider these questions separately. An examination of the deleted portions shows that they consisted in part of unresponsive answers, and of matters which, while they might with propriety have been allowed to stand, were of such slight importance that no prejudicial error is made to appear.
Several exceptions were taken to the refusal to permit several witnesses to testify that they had never seen any communication from the home office of the defendant showing ill will, malice, hatred or a desire to injure the plaintiff; or any word or act on the part of any representative that indicated bad faith. That the questions called for the opinion of the witnesses, and so were properly excluded, is too plain to require further comment.
The defendant seasonably presented twenty-six written requests for instructions and excepted to the noncompliance with twelve of them.
The first request was that no breach of the insurance contract was charged or claimed. All that is said concerning it in the defendant's brief is that it was error to refuse it as appears by the record and the request itself. This is inadequate briefing, and is alone sufficient to remove the exception from our consideration. Dailey v. Town of Ludlow,
Request 6-A was that the presumption was that the defendant acted in good faith. The court charted that "bad faith is never presumed." This was a substantial compliance with the request, and, indeed, went farther than was necessary. State v. Lizotte,
Requests 7, 8, 9 and 10 dealt with the rights and liabilities of the parties regarding settlement, within and without the policy limits, and were adequately stated when the court explained the provisions and limits of the policy.
Request 11 was that in settling or refusing to settle the defendant company "was not bound to consult the interest of the insured to the prejudice of its own interests in case of a *497
conflict between the two." The only argument put forward in support of this request is that it "is taken from Long v. Indemnity Co. (1931),
Requests 16, 17, 18, 22 and 23 dealt with specific illustrations of what was claimed would not constitute bad faith. They were designed, according to the defendant's brief, "to get the jurymen's eyes `on the ball' by giving some concrete substance to the broad epithet of `bad faith.'" The jury were instructed that the refusal of the home office of the defendant to accept a proposition of settlement, though within the policy liability, would not, standing alone, be sufficient to sustain a charge of bad faith; that the defendant would not be acting in bad faith if it refused to make a settlement in an honest belief that it had a fair chance of victory, or of keeping the verdict within the policy limit, or that, upon reasonable grounds, the settlement offer was excessive, even though the amount was less than the policy liability; and even though it had been mistaken and a verdict in excess of the policy limit was eventually rendered. It was repeatedly stressed that the defendant would not be liable because of an honest mistake in judgment, and made plain that no issue of negligence was involved. No exception was taken to these instructions and in taking exceptions to the failure to comply with the requests it was not indicated wherein the charge as given was claimed to have been inadequate. The requests were simply read to the court without further comment. Under the circumstances no available exception was reserved. Woodhouse v. Woodhouse,
The jury was instructed that under the terms of the policy the defendant was given the exclusive right to control the handling of the action brought by Rule against the plaintiff, and had the exclusive right to settle the ease or try it, at its option, provided it acted in good faith. An exception was taken to this instruction, upon the ground that it failed to explain that the right to settle was only within the policy limits, and that settlement beyond such limits was a matter entirely for the insured concerning which the insurer had no rights. It is argued in support of this exception that the presiding judge misconceived the principle that the insured had the right and power to settle his possibility of liability beyond the limits which he had chosen to purchase, by contributing to a settlement within the policy limits. All that is necessary to say is that this point was not made sufficiently explicit by the grounds of exception as stated below and so we do not consider it. See Higgins, Admr. v. Metzger,
The defendant moved to set aside the verdict. The motion was overruled, subject to exception. It is argued that the motion should have been granted because no legal cause of action had been proved. If we take this to mean that the verdict was contrary to, or against the weight of the evidence, the answer is that such grounds are addressed to the sound discretion of the trial court, and the ruling is reviewable only when it is made to appear that the trial court has failed to exercise or has abused the discretion with which it is clothed (Bradley v. Blandin etal.,
An exception was also taken to the denial of a motion in arrest of judgment. The ground briefed is that the complaint did not set out a cause of action. The claimed defects are not specified, but we assume them to be those that were made the basis of the motion to strike. These, however, we have already held to be faults of form only. A judgment cannot be arrested unless the complaint is so totally defective in substance that it would have been bad on general demurrer. Raithel v.Hall,
The last motion filed by the defendant, and denied subject to exception, was for judgment notwithstanding the verdict. The ground briefed is the same as that relied upon in the motion for arrest. Such a motion raises questions of pleading, and is ordinarily granted only when made by the plaintiff (Trow v. Thomas,
Judgment affirmed.
BUTTLES, J., dissents.
(Note. — The late Chief Justice Powers finished his work upon this opinion not long before his death, which occurred on June 24, 1938. From the star (*) on page 491 the opinion is Per Curiam).