Dissenting Opinion
Kennedy, J.,July 7, 1955. — I am not in agreement with the majority opinion that plaintiff failed to submit sufficient evidence to overcome the presumption that defendant “acted fairly, honestly, properly, in *20good faith and without fraud”. The verdict of $100,000 in the second trial, although declared excessive by the court en banc, was never considered as an arbitrary and capricious verdict because Phillips was seriously hurt and his claim for special damages was admittedly substantial. The lowest offer of compromise settlement before commencement of the third trial, and to be paid, if accepted, by plaintiff and defendant, was in the sum of $40,000. This offer was discussed by the representatives of the parties in this proceeding,' and based on the testimony construed in its most favorable light for plaintiff herein, allows an inference that it was realized by defendant that if the injured party Phillips was awarded a verdict in a third trial, the amount would be much higher than its policy coverage which was in the sum of $25,000. After the Supreme Court decision, 370 Pa. 288, it was clear that there could not be a directed verdict in favor of Cowden when that proceeding came on for retrial. The jury in this case, therefore, could have found from the evidence and the reasonable inferences that defendant intentionally disregarded its insured’s financial interest, in the hope that the jury would find a verdict in Cowden’s favor and thus the insurer would escape the full responsibility imposed upon it by the terms of the policy: See Johnson v. Hardware Mutual Casualty Co., 109 Vt. 481, 1A. 2d 817.
This defendant owed to plaintiff the utmost good faith because of their conflict of interests. See Perkoski v. Wilson, 371 Pa. 553. The jury, in my opinion, had sufficient evidence submitted to it to conclude defendant breached this duty, and that the breach manifested bad faith in its legal sense. The majority opinion on page 13 summarizes this evidence in paragraphs numbered (1) to (5) inclusive, and it is therefore not necessary to repeat it herein. Suffice to say the composite of all of this evidence, viewing it most favorably for *21the plaintiff, justified the jury’s finding a verdict for the plaintiff. Hence I dissent from the Order of the majority setting this verdict aside and entering judgment for the defendant.
Final Judgment
July 8, 1955, verdict fee paid and judgment n. o. v. entered in favor of defendant and against plaintiff.