Opinion
January 4, 1939.
January 30, 1939.
Practice — Non pros. — Insufficient statement of claim stricken off — Failure to file new statement.
1. A judgment of non pros. is properly entered where an insufficient statement of claim has been stricken off and the plaintiff refuses to file a more specific statement. [510-13]
Pleadings — Averments — Action against Fiduciary.
2. A statement of claim in a suit against an alleged fiduciary is insufficient which does not state with certainty how the fiduciary relation arose, the exact nature of it, and how it was breached. [511]
3. The rule that a fiduciary must explain and justify transactions in which he may have advantaged himself at the expense of the beneficiary is a rule of evidence rather than one of pleading. [512]
Argued January 4, 1939.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 290, Jan. T., 1938, from judgment of C. P. No. 6, Phila. Co., March T., 1937, No. 4594, in case of Edgar A. Barnett, administrator of Estate of John Elwood, deceased, v. Francis J. Ross. Judgment affirmed.
The facts are stated in the opinion of the lower court, by BOK, P. J., as follows:
This is a motion for judgment of non pros. for the refusal by plaintiff to file a more specific statement of claim, as permitted and ordered by this court. The original statement was stricken off, and it is the one we now consider.
The action is one by the administrator of a decedent's estate to recover money and chattels allegedly belonging to the estate and improperly taken by defendant. It is alleged that the decedent "did have in the custody of the Beneficial Saving Fund Society of Phila., $18,000," and "said sum of money was under the dominion and control of" said decedent. "About the time of, shortly before, or shortly after the death . . . the defendant by reason of the confidential relation (of Confessor to penitent) . . . did have and receive, and did exercise dominion and control over, the said sum in custody of the said Beneficial Saving Fund Society of Phila." It is then averred that defendant paid "small parts" to relatives of the deceased, paid "some of the debts" and converted the balance to his own use. The details of this "pretended administration" of the fund are solely within defendant's "control and knowledge" and the "knowledge and control" of the persons paid, who are not all known to plaintiff and some of whom reside outside our jurisdiction. The Savings Society, it is said, has refused to give plaintiff any information. The statement of claim alleges also that in addition to the money above mentioned, the deceased had other personal property, "the amount and character of which has not been specifically disclosed to the plaintiff, which said personal property is embraced in the legal term, goods, chattels, rights and credits." These goods, chattels, etc., plaintiff "believes . . . did shortly before or shortly after the (death) come into the possession, custody and control of the defendant." Plaintiff therefore claims $18,000 and demands that defendant state the right in which he received the other chattels and give an account of them.
Obviously this pleading is defective. While the Practice Act of 1915, sec. 11, 12 PS sec. 393, permits the plaintiff to ask for an account in a suit against a fiduciary, that section does not render wholly inoperative every rule of pleading. Plaintiff ought to state more certainly how the fiduciary relation arose, the exact nature of it, and how it was breached. Then it would be proper to compel defendant to answer or account. But no account will be ordered until the facts giving rise to the duty to account are definitely and specifically pleaded. It is not enough to say that defendant was decedent's priest and "exercised dominion" over certain moneys and articles previously under the "dominion" of the decedent. Generally, it is true, a fiduciary must explain and justify transactions in which he may have advantaged himself at the expense of the beneficiary, but that is a rule of evidence affecting the burdens of trial rather than one of pleading. Fraud may be presumed, but it must first be alleged. See 5 Wigmore, Evidence (1923), sec. 2489; 25 C. J., p. 1120. One who may or may not have been a confidant cannot be haled into court with the command "explain and account" without some definite statement as to what is to be explained and how defendant has acted wrongly. Some dereliction should be charged. Plaintiff in effect is alleging only that the decedent enjoyed some undefined relation to $18,000 and an undefined quantity of other chattels, that somehow defendant obtained control of the money from a bank, and of the other goods. He then wants the defendant to state a cause of action against himself. We cannot compel him to do that as these proceedings now stand.
Plaintiff does not say whether the money in the bank was a deposit, loan or trust nor that it had ever been in the name of decedent; he does not give the status of the decedent and defendant with regard to it. The legal relation between decedent and defendant is left undefined, but must have been of some clarity for banks don't pay $18,000 to persons without some claim of right. If the money was on deposit, plaintiff's remedy is against the bank, and not against defendant. This is the most expectable relation, and if it be any other, plaintiff should have so pleaded. As for the other property, nothing is said as to its nature or how plaintiff came into "control" of it or in what capacity. Is the action in assumpsit or trespass for conversion? Defendant can neither reasonably prepare a defense nor tell what specific information is sought from him when he is met with a pleading of such uncertainty.
It may be that plaintiff has a right, but his statement of claim does not set it forth. Perhaps his remedy is a Bill of Discovery to aid him in the preparation of his statement of claim.
See Amram, Pa. Common Pleas Prac. (4th ed., 1936), secs. 58-60. If so, he ought to ask for it, and not seek an account without saying how the duty to account arose and what he wants accounted for.
Rule obtained by defendant for judgment of non pros. for refusal by plaintiff to file a more specific statement of claim made absolute. Plaintiff appealed.
Error assigned, among others, was action of court below in making absolute the rule for non pros.
Paul Reilly, for appellant.
Henry B. Oestreich and Arthur E. Weil, for appellee, were not heard.
The statement of claim in this case was clearly insufficient. The judgment of non pros. is affirmed on the opinion of President Judge BOK in the court below.
Judgment affirmed.