Dickerman v. Vt. Mut. Fire Ins. Co.

• Decision Date: 03 December 1894
• Citation: 67 Vt. 99,30 A. 808
• Court: Vermont Supreme Court
• Parties: DICKERMAN et al. v. VERMONT MUT. FIRE INS. CO. SAME v. UNION MUT. FIRE INS. CO.

30 A. 808

67 Vt. 99

DICKERMAN et al.

v. VERMONT MUT. FIRE INS. CO.

SAME

v. UNION MUT. FIRE INS. CO.

Supreme Court of Vermont Windsor.

Dec. 3, 1894.

Exceptions from Windsor county court; Thompson, Judge.

Assumpsit by Lewis Dickerman and another against the Vermont Mutual Fire Insurance Company to recover upon a policy of fire insurance. Assumpsit by the same plaintiffs against the Union Mutual Fire Insurance Company for the same purpose. Defendants demurred to plaintiffs' declarations. Demurrers overruled, and defendants except Reversed.

D. C. Denison & Son and W. B. Johnson, for plaintiffs.

Senter & Kemp and Dillingham, Huse & Howland, for defendants.

ROWELL, J. The questions in these cases being the same, they were heard together. The statement in the counts demurred to, that the policies and applications are referred to and made a part thereof, does not, as is conceded, make those instruments a part of the counts. It is essential to the sufficiency of the counts that they should allege an insurable interest in the plaintiffs at the time the policies were Issued, and also at the time of loss. In respect to the time of issuing the policies, it is alleged that the defendants promised the plaintiffs to pay them certain sums of money named if their buildings, situate, etc., were destroyed by fire between certain dates. It is doubtful whether this is a sufficiently definite and positive allegation of insurable Interest. The authorities differ about it, and it is not necessary to decide the question; for the counts are bad for not alleging such interest at the time of loss, concerning which they contain no allegation whatever. It is also doubtful, to say the least whether it appears from either count that the money was due and payable when the suits were commenced. It is true that the promises as laid are to pay if the buildings were destroyed, but it is not alleged that payment was to be made on the happening of that event, nor on notice of its happening, nor within a reasonable or other time thereafter, and one of the counts alleges no notices. But it is unnecessary to consider this point further, as the pleader can easily obviate this objection when he repleads. Judgment reversed, demurrers sustained, the counts adjudged insufficient, and causes remanded.

TAFT, J., being a member of one of the companies, did not sit.