Wertheim v. Fid. & Cas. Co.

• Decision Date: 19 June 1900
• Citation: Wertheim v. Fid. & Cas. Co., 47 A. 1071, 72 Vt. 326 (Vt. 1900)
• Court: Vermont Supreme Court
• Parties: WERTHEIM v. FIDELITY & CASUALTY CO.

47 A. 1071

72 Vt. 326

WERTHEIM

v. FIDELITY & CASUALTY CO.

Supreme Court of Vermont. Chittenden.

June 19, 1900.

Exceptions from Chittenden county court General assumpsit by Bertha Wertheim, administratrix of Aaron Wertheim, deceased, against the Fidelity & Casualty Company. Judgment was rendered for plaintiff, and defendant excepted. Reversed.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, THOMPSON, and WATSON, JJ.

M. A. Bingham and W. L. Burnap, for plaintiff.

Seneca Haselton, for defendant.

TAFT, C J. In this action the plaintiff seeks to recover upon a policy of insurance against accident. The plaintiff's intestate was insured February 10, 1899, and died the following month; his death being caused by an accident resulting from the kick of a horse February 15, 1899. The only question presented in the case is whether the testimony offered in support of the plaintiff's claim, such as the policy of insurance, testimony as to the accident, and the resulting death of the intestate therefrom, might properly be admissible under the declaration. The declaration contained the general counts in indebitatus assumpsit for work and labor; care and diligence; materials provided; divers goods, wares, merchandise, and chattels sold and delivered; money loaned and advanced; money paid, laid out, and expended; money had and received; money due upon an account stated, and for the use and occupation of certain lands, tenements, etc. These are the only counts contained in the declaration, and the question arises whether a recovery can be had upon an insurance policy under either of them. The plaintiff urges that a recovery can be had under the common counts in assumpsit upon the holding in Bradley v. Phillips, 52 Vt. 517, "that when there has been a special agreement, the terms of which have been performed, so that nothing remains but a mere duty to pay money, the general counts are sufficient for the recovery of the sum due." This rule cannot be applied in this case; for, if it is true that under such circumstances money can be recovered under the general counts, it must be under such a general count as is applicable to the case. No one can consistently claim that under the general count for money had and received a recovery may be had for the use and occupation of lands, or that under a general count for goods, wares, and merchandise a recovery may be had for money paid, laid out, and expended. In a case, like Bradley v. Phillips, to recover under a general count, there must be a general count appropriate for the recovery of such a claim. A general count is one stating in a general way the plaintiff's claim, which in a special count is set forth with all needed particularity. When one has a claim which he can recover under a general count, he must frame such count with reference to it....