Henry Schlitz v. Lowell Mutual Fire Insurance Co.

Decision Date10 January 1923
CourtVermont Supreme Court

October Term, 1922.

ACTION OF CONTRACT. Plea, the general issue. Hearing on a motion by plaintiff for leave to amend declaration, at the September Term, 1921, Windham County, Fish, J., presiding. Motion overruled. The plaintiff excepted. Cause passed to the Supreme Court for hearing and determination on exceptions before final judgment on the merits. The opinion states the case.

Judgment reversed, and cause remanded.

Barber Barber & Miller for the plaintiff.

Carney Blake & Simonds (Gardner, Mass.) for the defendant.



The plaintiff seeks to recover on a fire insurance policy for a loss which occurred January 20, 1920. The writ, which was dated July 26, 1920, contained the so-called common counts, but did not contain a count applicable to a contract of insurance. The specification required by G. L. 1801 was filed with the writ. At the September Term, 1921, of Windham County Court, the plaintiff moved for leave to amend the declaration by adding a count applicable to the policy in question, the motion was denied, and the plaintiff saved an exception.

The questions for consideration are: Is the action of the trial court in denying the motion reviewable by this Court? and, did the proposed amendment introduce a new cause of action? These questions are considered in inverse order.

The necessity of declaring specially on insurance policies, either fire, life, or accident, no longer exists. G. L. 1801. A general count in assumpsit with a specification giving the number of the policy, the date of the fire, death, or accident, and the items involved if the policy contains more than one item, is all that is required. But the count must be applicable to a contract of insurance. Wertheim v. Fidelity & Casualty Co., 72 Vt. 326, 47 A. 1071. Because the original declaration contained no such count, the defendant insists that the proposed amendment introduced a new cause of action, and, therefore, falls within the well-settled rule that an amendment which brings in a cause of action different from that stated in the original declaration will not be allowed.

In the application of this rule it is not to be understood in the sense of the strict rule applicable to pleading and evidence. In this strict sense almost every amendment may be said to introduce a new cause of action. The plaintiff in counting upon a promissory note, may accidentally misdescribe the note as to date, amount, or time of payment. This would be cause for rejecting the note as evidence, on the ground that the note was not the one declared upon. Such is the effect of the holding in Wertheim v. Fidelity & Casualty Co., supra. This would be true as applicable to that question, for the reason that in determining that question the court could only compare the note with the description in the declaration. But should the plaintiff apply for leave to amend, the court might grant it on being satisfied that the note was the same on which the suit was in fact brought. The one is a question of legal identity to be determined by comparison of the note with the declaration. The other is to a great extent a question of fact, depending on the purpose and intent of the plaintiff in bringing the suit and framing the original declaration. Boyd v. Bartlett, 36 Vt. 9; Haskins v. Ferris, 23 Vt. 673. The true test is whether the proposed amendment is a different matter or the same matter more fully or differently laid; if the latter, the amendment is proper; if the former, it is not. Patterson's Admr. v. Modern Woodmen of America, 89 Vt. 305, 95 A. 692. See also, Daley v. Gates, 65 Vt. 591, 27 A. 193, where cases illustrating the application of this rule are collected. No question is made but that the proposed amendment declared upon the same matter, that is, the same policy upon which the plaintiff attempted to bring suit; and that such is the fact conclusively appears from a comparison of said amendment with the specification filed with the writ. This being so, it would seem that the proposed amendment was proper, even under our former practice. But, be that as it may, we think that it was clearly permissible under the Practice Act.

G. L. 1796 provides, "Pleadings may be amended in matters of substance at any stage of the proceedings, under the direction and in the discretion of the court, upon such terms as the court shall impose." This provision first appeared in the so-called Practice Act. Acts 1915, No. 90, § 4. This act was entitled, "An Act to Simplify and Improve Court Practice and Procedure, " and was the culmination of various legislative attempts to establish a system of procedure that would enable parties to get their rights settled in court on the merits without wading through a maze of legal technicalities. See, especially, Acts 1910, No. 84, and Acts 1912, No. 91. Under the former act counts in assumpsit and covenant, when for the same cause of action, might be joined in the same declaration; under section 2 of the latter act counts in assumpsit, debt and covenant might be joined. Section 1 of the latter act covered the very matter under consideration. It provided: "In an action on contract brought in the county court, when the original writ contains a declaration in the common counts only, the court in its discretion in term time or a superior judge in vacation, may after the plaintiff has filed his specifications, and it appears therefrom that he cannot recover under his original declaration, permit him to add special counts in assumpsit, debt or covenant for the same cause of action shown by his specifications, upon such terms as the court or judge shall prescribe." Under this statute the scope of the amendment was limited to the cause stated in the specifications, rather, than as formerly, to the cause stated in the original declaration. The change, manifestly, tended to hasten the end in litigation, without doing injustice to any one. When the plaintiff's specification was filed the defendant had notice of the claim made against him, and, if an amended declaration was filed for the cause of action stated in the specification, the defendant had opportunity to make answer thereto. Under this statute the proposed amendment would have been allowable.

But this statute was repealed in the revision of 1917. G. L 7535, p. 1316. So, it remains to consider whether the rights thereby conferred are available under our present statute. If they are, it is by virtue of the provisions of G. L. 1796. This statute, as we have seen, provides that, "Pleadings may be amended in matters of substance at any stage...

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