Howard National Bank v. Fidelity & Casualty Co

• Decision Date: 02 May 1923
• Citation: 121 A. 24,96 Vt. 462
• Parties: HOWARD NATIONAL BANK v. FIDELITY & CASUALTY CO
• Court: Vermont Supreme Court

121 A. 24

96 Vt. 462

HOWARD NATIONAL BANK v. FIDELITY & CASUALTY CO

Supreme Court of Vermont

May 2, 1923

February Term, 1923.

ACTION OF CONTRACT to recover on an insurance policy. No specification was filed with the writ. Subsequently, the plaintiff, without consent of the defendant or leave of the court, filed a specification, which the defendant moved to dismiss. Motion overruled and specification allowed to stand. Plaintiff on motion was permitted to amend the original complaint, which contained only the common counts in assumpsit, by the addition of two special counts in assumpsit. Defendant demurred to the original declaration and the additional counts. Heard on demurrer at the March Term 1922, Chittenden County, Wilson, J., presiding. Demurrer overruled. The defendant excepted, and cause passed to the Supreme Court before trial on the facts and final judgment. The opinion states the case.

Judgment affirmed and cause remanded.

Erwin M. Harvey and Warren R. Austin for the defendant.

Present POWERS, TAYLOR, SLACK, and BUTLER, JJ., and FISH, Sup. J.

OPINION

POWERS

The defendant issued its policy insuring the plaintiff to the amount of $ 15,000 against loss through the dishonesty of Frank W. Elliott, its employee. This action is brought to recover on that policy. The original complaint contained the common counts in assumpsit, only, and no specifica- tion was filed with the writ. Sometime after the suit was entered in court, the defendant moved for a specification, and later on, the plaintiff, without the consent of the defendant or prior leave of the court, filed a specification showing that a recovery was claimed on the defendant's policy No. 604594, only. The defendant moved to dismiss this specification, which motion was overruled and leave was granted to file a specification and a ruling made that the one on file might stand. The defendant excepted.

The rulings were without error. The statute, G. L. 1801, requires that the specification be filed with the writ. But this provision is directory, merely; there is nothing in the statute indicating that the Legislature intended that this kind of a specification should differ in quality or effect from the ordinary one filed under the rule or by order of court. Its office was to apprise the defendant of what it would have to meet at the trial, and to define the ground of recovery. This is implied in Hersey v. Northern Assurance Co., 75 Vt. 441, 56 A. 95, wherein it is said that "The Legislature, taking notice of the well-known fact that insurers keep a record of their policies, provided for a specification by number alone, which would serve to notify the defendant of the contract under which he was sued, and for a general declaration, which, with the specification, would inform the defendant that the plaintiff claimed to have fulfilled the provisions of the contract on his part * * *." Good practice requires that the specification be filed with the writ, but non-compliance with this provision of the statute is not necessarily fatal to the suit.

Though this specification was filed out of time and without leave or consent, the leave subsequently granted and the ruling then made took effect nunc pro tunc, and cured the omission. Nor are the other grounds of the motion to dismiss the specification tenable. The sufficiency of the specification under the statute is not, under this exception, questioned. It is claimed, however, that it discloses a cause of action that cannot be recovered for under the complaint. Though this be so, it does not follow that it should have been dismissed. That the complaint was such that a recovery could not be had on the claim disclosed by the specification was not the fault of the latter. It was, in itself, complete and adequate, and the motion to dismiss it was properly overruled.

The plaintiff asked for and was granted leave to amend the complaint by filing two additional counts based upon the policy referred to in the specification. The defendant excepted on the ground that the amendment introduced a new cause of action. But we held otherwise in Schlitz v. Lowell Mutual Fire Ins. Co., 96 Vt. 337, 119 A. 513, wherein the whole subject is fully discussed.

The defendant demurred to each of the three counts. The demurrer was overruled, and an exception saved. While, as the plaintiff now admits, no recovery can be had on this policy under the original complaint, it was not demurrable. No defect appears on its face. 1 Chitty 197. As a pleading, it is legally sufficient. That it is not in appropriate form could be taken advantage of at the trial, but if the defendant wanted to demur, it should have first obtained oyer of the policy, as was done in Morrill's Admx. v. Catholic Order of Foresters, 79 Vt. 479, 65 A. 526. The specification was no part of the complaint so far as the demurrer was concerned ( Currier v. King, 81 Vt. 285, 69 A. 873), and while it might show the defendant how to plead, it could not be pleaded to. New York Cent. R. R. Co. v. Clark, 92 Vt. 375, 104 A. 343.

The first of the additional counts is a general count on the policy. So far as this demurrer is concerned, it is unquestionably adequate. It could be much condensed, to be sure, and still be sufficient under the statute, but it is not demurrable. It must be kept in mind all the time that the essentials of this cause of action may be stated generally (G. L. 1801), and in brief and simple language (G. L. 1791). The material facts to be thus stated are the contract, and the breach of it. Gould, Pl. 167. All that was ever required to constitute good pleading was that the matter pleaded should be sufficient, and that it be alleged according to the...