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October 5, 1964

Tony RIPEPI, individually and Tony Ripepi, t/a/d/b as Keystone Music Company, Plaintiff,

The opinion of the court was delivered by: DUMBAULD

This is a diversity *fn1" action against an insurance company which failed to defend a suit against a policyholder for personal injuries allegedly sustained on the insured premises. A verdict of $ 4850.00 and counsel fees of $ 5500.00 (together with expenses of $ 110.50) are sought. Jury trial has been waived. This opinion shall be deemed to constitute findings of fact and conclusions of law.

On March 3, 1958, John Smiechowski, a truck driver, made a delivery of cigarettes to plaintiff's place of business. This was his first delivery for the day, and there was a narrow place about a foot long at the end of the truck where he was standing. He handed several cartons of cigarettes to an employee of plaintiff's who wheeled them away. While this employee was away from the truck, the driver slipped and fell about five feet to the ground, landing inside the door on plaintiff's premises. Plaintiff's employee brought him a chair, and shortly thereafter plaintiff took him to the hospital, where he visited him on several occasions.

 The driver said nothing to plaintiff or his employee regarding the manner or cause of his fall. Plaintiff made no inquires, and did not apprise the defendant of the incident.

 Some seventeen months later, on August 11, 1959, after having consulted the J. P. McArdle firm, the truck driver sued plaintiff, alleging that he had, before his fall, been inside the building to give his bills to an employee named Rose, and that he must have then inadvertently stepped into a deposit of dog dung which he sought to avoid, and that later this substance on his shoe caused him to slip and fall from the truck.

 Smiechowski persisted in this story to the date of trial of this action in this Court, testifying that he saw the dirt on his shoe while sitting on the chair in plaintiff's place of business and looking down, but that he was then in a state of shock and did not mention it. He also says that he saw it in the emergency room at the hospital and wiped it off on a towel which he threw in the wastebasket. There were no visible indicia of fabrication in the witness's demeanor, and a jury might well have accepted his version of the circumstances of his injury.

 Promptly after service of suit papers plaintiff notified defendant, but defendant refused to defend the case.

 Plaintiff was not required to employ the cheapest lawyer he could get, or solicit competitive bids or hire a starving, obscure young practitioner. Just as a taxpayer need not lodge in the cheapest room of the most inexpensive hotel in order to make his reasonable traveling expenses deductible, plaintiff here was not obliged to shop around before retaining competent and capable counsel. We find and hold that plaintiff's retaining Casey was a legitimate and reasonable measure, necessitated by defendant's failure to defend the case. It was not a collusive scheme, to 'soak' the insurance company.

 We find and hold also that Casey handled the case in a normal, reasonable, lawyerlike manner, displaying appropriate professional skill, judgment and discretion.

 After the usual pretrial steps, and after the case had been called for trial, and after the jury had been sworn, a directed verdict was entered by consent of the parties in the amount of $ 4850.00.

 We find and hold that this settlement was a proper exercise of professional judgment by Mr. Casey. He had been told by Judge Alpern at pretrial and by Judge Smith at the trial that the case would go to the jury. Defendant seeks to discount these statements as merely made for bargaining purposes to promote settlement. But defendant's expert witness Mr. Lancaster, engaged in defense work for insurance companies (including defendant, to the extent of 10% Of his practice), candidly conceded that an attorney may properly pay some attention to what a judge says in determining his trial strategy.

 Mr. Casey also had knowledge of two medical reports indicating permanent disability in the truck driver's elbow. There were medical bills of $ 1,275.85. The fact that Smiechowski is still driving a truck is hindsight. The propriety of settlement is to be judged by counsel's reasonable estimate of the situation act the time. As stated before, the truck driver's story sounds plausible, and though it may seem to have its comic aspects, had to be taken seriously by trial counsel.

 Defendant stresses that Smiechowski's story was weak, because he did not speak of the dung earlier, and that there was no witness to prove sufficient notice to the owner of the premises. But this merely goes to the weight of the evidence, and it might be anticipated that the truck driver by further refreshing his recollection might remember that the dung was dried and hardened and must have been on the floor for many months. These factors favoring the defense do not disprove the wisdom of counsel's decision to settle.

 As Mr. Lancaster also conceded, it is more important to an individual, who is only a casual, sporadic, and infrequent litigant, whether he wins or loses a lawsuit which may eat up his life's savings than it is to a professional litigant, such as an insurance company, which is in the business of litigation, collects premiums and sets up reserves for the purpose of paying verdicts, and can set off ...

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