Cohen v. Home Insurance Company
| Decision Date | 07 December 1915 |
| Citation | 29 Del. 6,95 A. 912 |
| Court | Delaware Superior Court |
| Parties | DAVID COHEN v. THE HOME INSURANCE COMPANY, a corporation of the State of New York |
Superior Court, New Castle County, November Term, 1915.
ACTION OF DEBT, No. 71, January Term, 1915.
Action by David Cohen against the Home Insurance Company, a corporation of the State of New York. On general and special demurrer to the declaration. The general character of the several counts therein and the contentions of the parties appear in the opinion. The special demurrer was sustained to all the counts. The consideration of the questions raised by the general demurrer were postponed until the declaration should be amended in accordance with the decision on the special demurrer.
See also post, 95 A. 238.
The special demurrer to all the counts in the declaration is sustained.
Robert H. Richards and Aaron Finger for plaintiff.
Saulsbury Morris and Rodney, with E. S. Stockbridge of Baltimore, Md for defendant.
OPINION
This is an action of debt brought by David Cohen against the Home Insurance Company, to recover the insurance on two certain policies issued by the defendant to the plaintiff, covering certain goods and chattels mentioned therein, which property was, according to the declaration, totally destroyed by fire, while the policies were in force.
The amended declaration as filed by the plaintiff contains eight counts.
The first six counts are on the first policy which was for the term of one year, for an amount not exceeding four thousand dollars, made and delivered on the fifteenth day of September, A. D. 1913.
The seventh count is on the second policy which was also for the term of one year, for an amount not exceeding four thousand dollars, made and delivered on the first day of November, A. D. 1913.
The eighth count is on each of said policies joined in a single count.
In the first count, it is averred:
"And the said plaintiff avers that he, the said David Cohen, did at all times, except in so far as prevented by the said defendant in this behalf, and except in so far as the necessity therefor was waived by the said defendant, duly observe and fulfill all the terms and conditions in said policy set forth on the part of the said David Cohen to be observed and fulfilled."
The averment in the eighth count is the same as in the first except the word "policy" is in the plural.
The averment in the first count is contained in the second, third, fourth, fifth, sixth and seventh counts, except that the words "and except in so far as the necessity therefor was waived by the said defendant," are omitted.
Immediately after the averment contained in each of the last mentioned counts, there is added in varying form and substance an allegation setting forth facts and circumstances which is intended, according to the contention of the plaintiff, to show a substantial performance of one of the conditions of the policy, or a waiver thereof, or an estoppel in relation thereto as against the defendant. It may be said in this connection that we understand the averments referred to here to be independent of the general averments of prevention and waiver as shown above. As to the sufficiency of these averments for the purpose intended, we shall express no opinion.
The defendant has demurred both generally and specially. The general demurrer is to the second, third, fourth, fifth and sixth counts, and the special demurrer is to each of the eight counts. The case is now before the court on these demurrers.
Because of the code system in some of the states, and special statutes, in others, in relation to pleadings on insurance policies, there is much diversity in the decisions upon the questions raised by the demurrers.
The common law rules of pleading, except as modified by statutes, obtain in this state and are as applicable to insurance policies as to any other contracts with conditions to be observed and fulfilled.
In considering some of the questions raised by the pleadings in this case, we think it proper to say at the outset that in declaring on insurance policies like those in question containing numerous conditions, a general allegation of performance is ordinarily sufficient; for the rule requiring performance to be specially shown, admits of relaxation when the subject comprehends such multiplicity of matter as would lead to great prolixity. Steph. on Plead. 336.
We do not think, however, that the rule of general allegations, as against a special demurrer, can properly be extended to matters of prevention, waiver or estoppel, when relied upon in lieu of performance. The defendant has a right to know what facts are relied upon under the allegation "except in so far as prevented by the said defendant in this behalf," as well as also under the allegation "except in so far as the necessity therefor was waived by the said defendant."
It is said in 1 Chit. on Plead. 309:
"It is well...
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...contract should be specially pleaded, the rule is relaxed and a general allegation of performance is held sufficient. See Cohen vs. Ins. Co. (Del.) 29 Del. 6, 95 A. 912. nearly thirty-six pages of testimony of plaintiff's witness (Tr. 1 to 36) as to how the safe was lost, and how the books ......
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Cohen v. Home Ins. Co.
... 95 A. 912 COHEN v. HOME INS. Superior Court of Delaware. New Castle. Dec. 7, 1915. Action by David Cohen against the Home Insurance Company, a corporation of the state of New York. On general and special demurrer to the declaration. The general character of the several counts therein and t......