Schlitz v. Manufacturers & Merchants Mutual Fire Insurance

Watson, C. J. This is an action brought to recover on two fire insurance policies. The complaint consists of two general counts in assumpsit, each count being upon an insurance policy. The plaintiff filed with the writ, specifications as required by G. L. 1801. Defendant filed a plea in bar of former adjudication in an action of contract, brought by plaintiff against defendant on the 25th day of February, 1920, in which the plaintiff filed specifications of his claim, in all respects identical with the specifications filed in the instant case; that in the former suit the defendant filed its answer denying every material allegation in the plaintiff’s writ and complaint, and issue having been joined thereon, the case came on for trial by jury at the April Term, 1921, of the same county court, and after the plaintiff had introduced testimony in support of his cause and rested his case, the court, on motion of the defendant, directed a verdict for the defendant and rendered judgment for defendant on such verdict, which judgment, never having been reversed or annulled, remains in full force; and further alleging that this suit is brought for the same cause of action as that upon which the former suit was brought and no other. It is apparent that plaintiff’s reply to this plea was treated by the trial court as a demurrer, for the record states that said cause came on for hearing upon the pleadings, and after hearing arguments thereon, and upon considera [355] tion thereof, said plea in bar was overruled, and an exception thereto allowed the defendant and the cause passed to the Supreme Court before trial on the merits. In order for the former judgment to constitute a bar to the present action, the verdict ordered in that case, on which the judgment was rendered, must have been on the merits. The plea in bar contains no allegations to that effect and consequently was properly held to be insufficient. Dunklee v. Goodenough, 63 Vt. 459, 21 Atl. 494; Jericho v. Underhill, 67 Vt. 85, 30 Atl. 690, 48 A. S. R. 804. In the briefs of counsel, questions outside the pleadings are argued, but they receive no consideration; for when pleadings end in a demurrer, and the ease is before us on exception to the ruling sustaining the demurrer and holding insufficient the plea so challenged, no facts can be treated as in the case, beyond those appearing in the pleadings and admitted by the demurrer. Columbia Granite Co. v. Townsend & Co., 74 Vt. 183, 52 Atl. 432. Judgment affirmed and cause remanded.