American Fidelity Co. of Montpelier, Vermont v. Stokes

Headnote

American Fidelity Co. of Montpelier, Vt., v. Stokes, 172 App. Div. 908 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 31, 1916, affirming a judgment in favor of plaintiff entered upon a verdict. Two actions had been commenced in July, 1912, against this plaintiff to recover damages for loss of services and personal injuries growing out of an accident to an infant, claimed to be due to the negligence of this defendant’s chauffeur. The defense of both actions was undertaken by this plaintiff through its attorneys, under the terms of a policy of insurance whereby the respondent agreed to indemnify appellant to the extent of $10,000 against loss or expense on account of bodily injuries accidentally suffered by one person. The complaint alleged that the plaintiff was defending the two actions above referred to pursuant to the policy and in consideration that the plaintiff would settle the said actions the defendant promised to pay the plaintiff towards the expense of such settlement the sum of $1,000 and that plaintiff in consideration of said promise of the appellant relinquished the defenses of the said actions and duly effected a settlement thereof and paid in settlement thereof the sum of $6,500. The answer, while admitting that the plaintiff was defending these actions and it did settle them, denied any agreement on defendant’s part to pay $1,000 in consideration of the respondent’s relinquishing the defenses of the actions and effecting the settlement. The only question in the case was whether or not any such contract was made.