Mainieri v. McLellan

211 A.2d 239 (1965)

Daniel N. MAINIERI
v.
George L. McLELLAN and City of Burlington.

No. 336.

Supreme Court of Vermont. Chittenden.

June 9, 1965.

Black, Wilson & Hoff, Burlington, for plaintiff.

Francis R. Peisch, Burlington, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

PER CURIAM.

The amount of agreed damages was entered on the plaintiff's portion of the verdict form, prior to its delivery to the foreman of the jury upon submission. The trial court noted this circumstance in his charge. Here, the defendants argue that the mere presence of this entry on the form may have inclined the jury to find in favor of the plaintiff. This would require a presumption, which we will not indulge, that the jury declined to follow the instructions of the presiding judge that they were bound to decide between the plaintiff and the defendants on the fair balance of the evidence. Lewis v. Gagne, 123 Vt. 217, 219, 185 A.2d 468.

Moreover, this issue was not presented to the trial court so as to give that tribunal an opportunity to take corrective action, if required. Merrill v. Reed, 123 Vt. 248, 254-255, 185 A.2d 737.

Judgment affirmed.