Cappellar v. Queen Insurance

Green, Judge, announced the opinion of the Court: The question in this case is: When a declaration in an action on a policy of insurance is filed in the form prescribed by chapter 66, of Acts of 1877, section 1, and a plea is filed by the defendant in the form prescribed by the-act, and issue is joined thereon as prescribed in section five of said act, and the plaintiff'or defendant or both of them without being required so to do by the court under sections two and three of this act files under sections four and five of this act the statements in writing referred to in these sections, should the court regard these statements, as if they were a portion of the pleadings in the case, and refuse to permit them or any portion of them to be filed, because when offered to be filed the court is of opinion, that such statements, or any particular part thereof, do not allege facts, which in the opinion of the court constitute, if true, a defense to the action; or when offered to be filed by the plaintiff do not state facts, which in — 592 — the opinion of the court constitute, if true, a good rejoinder by the plaintiff to the facts embraced in the statement hied with the defendant’s plea; or under the sixth section of said Act of 1877 should the court strike out such statement filed by either party, or any part thereof, when such statement or part thereof is sufficient to notify the adverse party in effect of the nature of the claim or defense intended to be set up against him or even when such is not the case ? In other words : Under this chapter 66 of the Acts of 1877 should these statements be regarded in the nature of pleadings, and as being liable to be stricken out by the court, if they he such, as if formally pleaded, would have been liable to demurrer; or under this act are these statements similar to the bill of particulars or account, which the plaintiff is required in an action of assump-sit to file with his declaration by section 11, chapter 125 of Code of West Virginia; or to the account of payments and set-off which the defendant is required to file with his plea by section 4 chapter 126 of the Code of West Virginia, it being well settled, that these bills of particulars or accounts filed with the pleadings are not in the nature of pleading, but are to be regarded merely as notices of what will be proven at the trial; and if they are too vague, the penalty imposed on the party filing them is the exclusion of his evidence of any matters not described in such bill of particulars or account so plainly as to give the adverse party notice of its character, and by the 46th section of chapter 131 of Code of West Virginia, the court is authorized in any action or motion to order either party to file such bill of particulars, which the statute provides shall be subject to the same rules and be regarded in like manner as the bill of particulars filed in an action of assumpsit, or with pleas of payment or set-off? Section 4 of chapter 66 of Acts of 1877, is as follows: “To any declaration or count'in a policy of insurance, whether the same be in the form prescribed by this act or not, and whether the action he covenant, debt or assumpsit, the defendant may plead, that he is not liable to the plaintiff, as is in said declaration alleged. But if in any action on a policy of insurance the defense be that the action can not he maintained because of the failure to perform or comply with, or violation of any — 593 — clause, condition or warranty in upon or annexed to the policy, or contained in or upon any paper, which is made by reference a part of the policy, the defendant must file a statement in writing specifying by reference thereto or otherwise, the particular clause, coudition or warranty in respect to which such failure or violation is claimed -to have occurred; and such statement must be verified by the oath of the defendant, his officer, agent or .attorney-at-law to the effect, that the affiant believes that the matter of defense therein stated will be supported by evidence at the trial.” And the sixth section oí said act is as follows: “If either party to the action fail to file any statement required of him by this act, or by the other party pursuant to this act, or if the statement be adjudged insufficient in whole or in part, the court, as justice may require, may grant further time for filing the same, or permit the statement filed to be amended, or may at the trial exclude the evidence offered by the party in default as to any matter he has so tailed to state, or has insufficiently stated. But no statement, which in the particulars required by or under this act to be stated, or referred to therein is sufficient to notify the adverse party in effect of the nature of the claim or defense intended to be set up against him, shall be adjudged insufficient.” This Court has repeatedly decided, what it seems to me was perfectly clear under the statute independently of any decision, that a bill of particulars or account filed- with an action of assumpsit or with a plea of payment or set-off under our Code, if defective, could be taken advantage of by the opposite side not by demurrer, but only by moving to exclude the evidence from the jury, which might be offered to sustain such imperfect bill of particulars. or account, and that such bill of particulars or account constituted no part of the pleadings in the case. See Choen v. Guthrie et al., 15 W. Va. p. 113 and 114; Abell v. Penn Mutual Life Ins. Co., 18 W. Va. 412, 413; Smith v. Townsend, supra. Now it does seem to me quite obvious, that this chapter 66 of the Acts of 1877, p. 89, was simply intended to extend the provisions of the Code of West Virginia, to which wTe have referred as requiring in certain cases a bill of particulars to be filed with the declaration, plea or rejoinder, as the — 594 — case might be, to actions on policies of insurance brought under this act, and that it was required, that the statement to-be filed under chapter 66 of Acts of 1877 in actions on policies of insurance, when not those ordered by the court to be filed, were to stand in exactly the same relation to the case as did these bills of particulars now required to be filed under the Code. "When such bills of particulars were filed in actions of asimmpsit with the declaration, or were filed by the defendant with his pleas of payment or set-off, the court did not and could not properly pass on their sufficiency when filed. But if they turned out to be so vague as not to give plainly to the adverse party notice of their character, he was protected from resulting injury not by striking them out when offered to be filed because of their insufficiency but by excluding any evidence, that might bo offered to sustain any item in his bill of particulars too vaguely described to give the adverse party notice of its character. This was certainly ample protection against vague and insufficient bills of particulars. When however, the law itself did not require the filing of such bills of particulars, but under section 46 of chapter 181 of Code of West Virginia the filing of such bill was required by the order of the court in every action, I presume the court might supervise the bill of particulars, which was filed by its order, and if it deemed it insufficient in whole or in part might give further time for filing the same, or permit the bill" of particulars filed to be amended, or might at the trial exclude the evidence offered by the party in default as to any matter, which he had failed to state in his hill of particulars, or as to any matter which the court had adjudged that he had insufficiently stated. Section 46 of chapter 131 of the Code of West Virginia expressly provides, that the court may, when tlie case is tried, .exclude evidence of any matter not described in such bill of particulars filed under the order of the court, when the matter is not described so plainly as to give the adverse party notice of its character. And it seems but reasonable, that where the bill of particulars is filed by the order of the court, the court should inspect it when filed, and if called upon by the parties to determine the question, then decide whether it — 595 — was so plain as to give tlie other party notice of its character, and enter on the record the adjudication whether such bill of particulars was or was not sufficient, that is, was or was not so plain as to notify the adverse party to the action of the claim or defense intended to be set up against him. For it is obvious under section 46 of chapter 131 of the Code of West Virginia, and under the decisions of this Court in Choen v. Guthrie et al. 15 W. Va. 113, 114; Abill v. Penn Mutual Life Insurance. Co., 18 W. Va. 412, 413 and Smith v. Townsend, supra, that the court could not adjudge such bill of particulars insufficient for any other reason than because it was too vague to notify the adverse party of the nature of the claim or defense intended to be set up against him. It could not adjudge it insufficient, when it was not too vague, merely because the court was of opinion, that the defense or rejoinder intended to be relied on was not good in law, for this would be to hold such bill of particulars liable to a general demurrer, which, we have decided, it is not. This being, as I conceive, the state of the law with reference to bills of particulars when chapter 66 of Acts of 1877 was passed, it does seem to me, that section 6 of that act indicates clearly, that the statements either required by the law to be filed with the pleadings in actions on policies of insurance, or which might be required by the order of the court to be filed, were intended to stand upon the same footing as bills of particulars had previously stood. That is to say that the statement, which under section 4 of chapter 66 of Acts of 1877 must be filed by the defendant with his plea, can in no case be adjudged insufficient by the court, whether it. presented a ground of defense or not, or whether or not it was too vague or indefinite to notify the plaintiff in effect of the nature of the defense intended to be set up against him. But if it was insufficient because it presented no ground of defense, or because it was too vague or indefinite to notify the plaintiff of the defense intended to bo set up against him, the court on the tidal of the case might declare it insufficient, and on motion of the plaintiff might exclude all evidence offered to sustain any fact alleged in such statement, which would constitute no defense or which was so vague as not to — 596 — notify tlio plaintiff in effect of the nature of the defense intended to be set up against him. But if under section 3 of chapter 66, Acts of 1877, the court or judge ordered the defendant, in its discretion, to file with his plea a more particular statement in any respect of the' nature of his defense, or of the facts expected to be proved at the trial, then if such statement was too vague to notify.the plaintiff in effect of the nature of the defense intended to be set up against him the court might, if the plaintiff by motion asked it, adjudge such statement insufficient in whole or in part and enter said adjudication of record, and thereupon as justice may require, it should grant further time for-filing a sufficient statement or permit the statement, which had been filed to be amended; but in no case should it refuse to permit the statement offered by the defendant to be filed. If the statement is adjudged insufficient because of its vagueness, or if it be in point of fact insufficient on account of its vagueness, and -no entry he made adjudging whether it he insufficient or not, at the trial the court may exclude on the plaintiff’s motion evidence offered by the defendant in default as to any matter which he has after such order failed to state, or which he has so insufficiently stated as not to notify the plaintiff in effect of the nature of the defense intended to be set up against him; and also any matter whether stated in such statement or not, as constitutes in law no defense. The same rules must be applied to the plaintiff. If’he files with joinder in issue under the fifth section, where he intends to rely upon any matter in waiver, estoppel or in confession and avoidance of any matter, which may have been stated by the defendant as aforesaid, a statement in writing, which he must do, specifying in general terms the matter, on which he intends to rely, the court cannot refuse to permit such statement to be filed or adjudge it at the time it is offered to he insufficient on any account; but if it he insufficient, because- the matter relied on is not good in law as a rejoinder to the defense, or because it is insufficient because of its vagueness to notify the defendant in effect of the nature of the plaintiff’s claim or rejoinder intended to he set up against the defendant, the court on the — 597 — trial and on the motion of the defendant should exclude the evidence if offered by the plaintiff in defense as to any matter, which he has so failed to state, or which he has insufficiently stated, or which though stated constituted in law no rejoinder or answer to the defense. But if the plaintiff does not file the statement under the fifth section but files it under the third section, because ordered by the court so to do, then if called upon to do so by the defendant, the court may enter of record, that this statement is insufficient, provided it does not notify in effect the defendant of the nature of the claim or rejoinder of the plaintiff intended to be set up against the defendant; but the court can not enter of record, that such statement of the plaintiff is insufficient because, in its judgment, it does not as a matter of law set up a good claim against the defendant, or-does not set up a good rejoinder against his defense. But the court may on the trial of the case, on the motion of the defendant, reject such of the plaintiff’s evidence as is offered to prove any matter, which he has failed to state, when required, in his statement, or which he has so insufficiently stated, or which though stated constitutes no evidence of a claim on his part, or no rejoinder to the defendant’s defense. Or if the evidence has gone before the jury, whether for the plaintiff or defendant, the court may instruct the jury as to the effect of the proof of such facts upon, the rights of the opposite party. It is true, that the 6th section of chapter 66 of Acts of 1877 is somewhat obscurely worded; but in view of what was the previous law in reference to bills of particulars, whether filed by the plaintiff or defendant, and whether under the requirement of the law or under the order of the court, we think we have given the fair construction to the section. It is said, that by thus leaving everything to be determined by the court as to the law of the case at the trial of the case, and by dispensing with everything like definite pleadings, this act will practically render the actions on policies of insurance more difficult than they were before the passage of this act. This may be so. The Legislature however seems to have thought differently; whether wisely or not, time alone can determine. If on the other hand these statements, as they are called in — 598 — this act should, contrary to the very meaning of the term, be regarded as pleadings, and liave the rules of pleading applied to them, it 'seems to me to be very obvious, that the Legislature would by this act have increased the difficulties of trying actions on policies of insurance. For the difficulty in such cases was not the formal averments made in the pleadings, but was that of determining what averments were required to be made in the declaration, plea and rejoinder; and this difficulty is in no manner diminished by requiring these averments, instead of being made on the face of these pleadings, to be made in these statements filed with the pleadings, if when so made they are to be regarded just as if they had been made formally in the body of the pleading, and are as subject to demurrer when in these statements as they were when in the pleadings. The difficulty of deciding-on these pleadings instead of being diminished by this new mode of pleading would only be increased; as it would often become almost impossible for the court. in the informal manner, in which the facts are set out in these statements, to determine whether they constituted a good defense or rejoinder or not. This can be much more safely done, if formal pleadings are dispensed with, at the trial, when all the facts are developed; and these statements will, it is supposed, suffice to prevent surprise, which is, I think, all that they were intended to effect. In this case,the policy was not under the seal of the company but was signed by two directors and a manager in New York, and the form of the action was properly assumpsit. According to the views, which we have expressed, the court below erred in refusing to allow that portion of the statement marked I. and II, which accompanied plea No. 3, and each sub-division thereof to be filed. It also erred in refusing to allow that portion of the statement, marked I. and II., which accompanied plea No. 4, and each sub-division thereof to be filed; and also in refusing to allow that portion of the statement marked II., which accompanied plea No. 5, and each sub-division thereof to be filed. All these statements were such as the 4th section of chapter 66 required the defendant to file, and none of them were statements, which under the 3d section of the said act were filed by order of the court; — 599 — and therefore the court bad no right to refuse to permit the whole or any part of them to be filed, whether they set up an insufficient defense or not, or whether or not they were too vague to notify the plaintiff in effect of the nature of the defense intended to be set up against him. In either of these cases it was the right of the plaintiff on the trial to move to exclude the evidence offered by the defendant to sustain the averments of facts contained in these statements filed with his pleas; or if the evidence had been received, the plaintiff could have asked the court to instruct the jury, that the facts constituted no defense. But it had no right to ask the judgment of the court on these questions till the trial of the case before the jury. The court could not advisedly or legally determine those questions, when these' statements were filed, but could do so only at the trial. In like maimer and for a like reason the court below erred in sustaining the defendant’s objections to the plaintiff’s statement in his reply marked No. 1, so far as said objections relate to the sub-divisions of said statement marked respectively V., VI., VII. and VIII., and in requiring them to be stricken out. The matter thus determined by the court could only have been properly determined at the trial and in the manner above indicated. The plaintiff by a blunder stated in his declaration, that the policy sued on issued on March 8, 1881, while the policy itself filed with the declaration as a part thereof on its face shows, that it was issued on March 8, 1880. It is unnecessary to decide whether this was a fatal blunder after the verdict, as the verdict and judgment for the errors, which we have pointed out, must be set aside and a new trial awarded, and leave must be given the plaintiff to amend his declaration, which he can do by inserting the correct date of the policy. It is insisted by the counsel for the plaintiff below, the defendant in error, that plea No. 5 and the accompanying statement are not parts of the record in this case, because having been rejected they could only be preserved in the records by being incorporated in a bill of exceptions. On the other hand it is insisted, that they are by reference sufficiently incorporated in bill of exceptions No. 3. We need — 600 — not determine this question as the judgment, which we would render, could not be affected by its determination, because there are, as we have seen, sufficient errors to reverse this case, whether this plea and statement are regarded as a part of the record or not. In stating the case we have treated them as a part of the record. This question cannot again arise; and it is useless to consider or determine it, as it will be by our decision in effect no longer a question in tli'e case. As we have held, that the circuit court improperly acted upon and decided what would constitute a good defense in this action, and what would not, when these various statements were filed, we of course cannot properly consider these questions, which have been argued before us on the pleadings in this case; they can only be properly decided on the trial, and we can neither wisely nor properly determine them in this stage of the case. It is most probable, that a large majority of them will never come before the circuit court to be decided. This oí itself is a strong reason, why the court should not be called upon to decide these questions, when the statements are filed; as very many of them may turn out to be mere abstract questions. Instead of filing several different pleas “that the defendant for plea in this behalf says it is not liable to the plaintiff as in the plaintiff’s declaration is alleged and this he is ready to verify,” but one such plea should have been filed, and all the various statements should have been filed with it; and so there should have been one reply and one statement accompanying such reply. For the reasons we have stated the judgment of the circuit court of Kanawha county rendered on April 9, 1881, must be set aside, reversed and annulled; and the plaintiff in error, Queen Insurance Company, must recover of the defendant in error J. K. Cappellar, its costs in this Court expended; and this Court proceeding to render such judgment, as the circuit court of Kanawha county should have rendered, doth set aside the verdict of the jury rendered in this action, and doth award a new trial, the cost of the former trial to abide the result of the suit; and this case is remanded to the cii’-cuit court of Kanawha county with directions to permit the — 601 — plaintiff to amend bis declaration, and to permit the defendant to withdraw any of his pleas and to file a new plea or pleas, and with further instructions to proceed with this case on the principles laid down in this opinion, and further according to law. Judges Johnson and Snyder Concurred. Judgment Reversed. Case Remanded.