Hartford Fire Ins. Co. v. Stevens

• Decision Date: 01 January 1924
• Citation: 123 A. 38
• Parties: HARTFORD FIRE INS. CO. v. STEVENS.
• Court: Maine Supreme Court

123 A. 38

HARTFORD FIRE INS. CO.

v. STEVENS.

Supreme Judicial Court of Maine.

Jan. 1, 1924.

Exceptions from Superior Court, Cumberland County.

Action by the Hartford Fire Insurance Company against Frank E. Stevens. Judgment for defendant, and plaintiff excepts. Exceptions sustained.

Argued before CORNISH, C. J., and SPEAR HANSON, MORRILL, and WILSON, JJ.

J. H. McCann, of Portland, for plaintiff.

W. A. Connellan and R. M. Ingalls, both of Portland, for defendant.

HANSON, J. This was an action of replevin, and is before the court on plaintiff's exceptions. The exceptions state the facts and questions raised as follows:

"The plaintiff claimed that the automobile was owned on April 6, 1922, by James W. Holt, of Medford, Middlesex county, state of Massachusetts, and was stolen from Holt on that day. The plaintiff was Holt's insurer against such a loss. It later paid Holt his loss, and also took from him a bill of sale of Holt's Buick automobile. On April 8, 1922, one William J. Parker gave a bill of sale of a Buick coupe to a corporation known as the Atlantic Automobile Sales Company in the office of an attorney in Portland, Me. On April 23d the Atlantic Automobile Sales Company gave a bill of sale, through its treasurer, David Tarshis, of the Buick coupe it received from said Parker, to Dr. Frank E. Stevens, of Bridgton, Me., the defendant. The plaintiff replevied said Buick coupe, claiming that the automobile transferred by said Parker to the Atlantic Automobile Sales Company on April 8, 1922, was the same automobile stolen from James W. Holt on April 6, 1922.

"The plaintiff called as a witness David Tarshis, who demonstrated and sold to the defendant the replevied car. Plaintiff endeavored to show by this witness, Tarshis, that three months previously he (Tarshis) had declared that the certain personal property before then within said state, feloniously stolen, taken and carried away, feloniously did buy, receive and aid in concealing, one Buick coupe 1922 model, the original serial number of which was 783506, the present serial number being 783508, the original motor number was 790515, the present motor number being 790815, of the value of $1,000, of the property of one James W. Holt. The answer of the witness was in the negative.

"Plaintiff then claimed the right to prove that Tarshis had pleaded guilty to receiving the Holt automobile, the Buick car replevied in this action, counsel stating the reason as follows: 'Because it is already established as a fact, and inasmuch as the witness denies it, then it can be shown under the rule that you can clearly by other competent evidence, by other evidence or other witnesses, establish the fact which the witness at the present time denies as being true. I may rely upon the conviction as the existence of a fact.' After discussion between the court and counsel on both sides on the matter, the question was asked, after the above reason for its being asked had been stated:

"'Question (by plaintiff's counsel): May it please the court, that the matter may be made clear, I now offer to prove by Mr. Tapley, the clerk of this court, the record of an indictment found against this witness (David Tarshis), charging him with receiving stolen goods, and in which the automobile in question is specifically described; said record containing his plea of guilty thereto in open court at the September term of this year.' (September, 1922, is referred to.)

"Defendant objected to the admission of such evidence and same was excluded by ruling of the court.

"Exception 2. After the evidence in the case was closed, and following arguments to the jury by counsel for the defendant and counsel for the plaintiff, the defendant addressed a motion to the honorable court to direct a verdict in favor of the defendant. The honorable court granted said motion, and instructed the jury to return a verdict for the defendant, which was done. Plaintiff duly excepted."

The officer was commanded to replevy—

"one automobile, Buick coupe, year 1922, Model 22-48, which plaintiff says was owned on April 6, 1922, by James W. Holt, of Medford, in Middlesex county, state of Massachusetts, and stolen on the same day at Somerville, in said Middlesex county. The plaintiff succeeded said Holt in title by reason of being his insurer against theft, perfecting its title thereto by payment of theft insurance."

The declaration then recites the original numbers on the car, and the numbers as changed, the color of the body of the car, the kind of lock, and tires. The defendant relies on plaintiff's inability to prove the numbers, the color of the car, or kind of tire, as stated in the writ.

We are of the opinion that the ground is not well taken. If such defense should be sustained, it would open the way for a wider practice of an evil now too prevalent. A stolen car, if the thief has the time and the skill, is always changed in the very details mentioned. The items referred to might all be removed and leave no distinguishing number, or tire, or lock, and the color even may be changed. If such removal and changes were sufficient under the law to prevent an owner from identifying his property in a suit for its recovery, he would be without a remedy. The law does not so intend. It follows logs sawed into boards and returns them to the owners. Wingate v. Smith, 20 Me. 287. If all the numbers had been removed, if the color had been changed, the lock and tires removed, it was still an automobile; the class, the identity, had not been changed, and its ownership, history, and identity were open to proof. With regard to the quality or species of the goods, the plaintiff is perhaps bound to prove the fact as laid, but with regard to the number or value of the goods he may prove less than he charges in his declaration, but he cannot prove more. 1 Chitty on Pleading, Vol. 1, § 378. The words describing the numbers, lock and tires could have been omitted, and the description remain well within the rule laid down in Musgrave v. Farren, 92 Me. 202, 42 Atl. 355, for the automobile would then be described with reasonable certainty.

Defendant's counsel in their brief contend further:

"That the pleader in the matter of description went far beyond what is required by law. Nevertheless, he then and there assumed the burden of proving each and every fact so alleged, and his failure so to do would be fatal to his case," and cite Commonwealth v. Lloyd Wellington, 7 Allen (Mass.) 299, in support of their position. The case cited was an indictment for wrongfully desecrating and disfiguring a public burying ground. The burial ground was described in the indictment by "metes and bounds with minuteness and particularity." Evidence was introduced upon the trial tending to show that there had been many interments in some parts of the lot of land thus described. The defendant contended that this evidence was insufficient to show that the whole of the lot had ever been used or occupied or appropriated as a burying ground; that there was a fatal variance between the fact proved and the allegation in the indictment, and for that reason a verdict ought not to be rendered against him. The court held substantially as claimed under the rule that—

"Whenever a person or thing necessary to be mentioned in an indictment is described with unnecessary particularity, all the circumstances of the description must be proved; for they are essential to its identity."

In support of its conclusion the court cites United States v. Howard, 3 Sumn. 14, Fed. Cas. No. 15403, where the court say, that—

"The rule seems to be fully established, both in civil and criminal cases, with respect to what statements in the declaration or indictment are necessary to be proved, that if the whole of the statement can be stricken out without destroying the accusation and charge in the one case, and the plaintiff's right of action in the other, it is not necessary to prove the particular allegation; but if the whole cannot be stricken out without getting rid of a part essential to the * * * cause of action, then, though the averment be more particular than it need have been, the whole must be proved, or the action or indictment cannot be maintained."

That finding was made 60 years since, based upon a then long standing rule of practice and procedure, but even then courts had begun to relax the stringency of the rule in civil cases at least, and were seeking a way to reach the issue in a case, stripped in some measure of technicalities that hindered and delayed the course of justice. The rule, indeed,...