Opinion
38620.
DECIDED MARCH 7, 1961.
Action on account. Fulton Civil Court. Before Judge Parker.
John L. Westmoreland, John L. Westmoreland, Jr., Harry P. Hall, Jr., M. K. Pentecost, Jr., for plaintiff in error.
Powell, Goldstein, Frazer Murphy, A. A. Baumstark, James K. Rankin, contra.
In an action on open account in which the plaintiff seeks to recover premiums for insurance policies, a bill of particulars showing the number of each policy, the effective date thereof and the premium due on each such policy, is sufficient to limit the plaintiff to one cause of action and to fairly apprize the defendant of the character of the demand against him.
DECIDED MARCH 7, 1961.
American Casualty Co. filed an action against Southern Wire Iron, Inc., in which it sought to recover premiums due on policies of insurance sold the defendant. The petition alleged that an "itemized statement of each policy number, the effective date thereof, amount of premium charged, as well as the same information with reference to credits to which defendant is entitled, being attached hereto, marked exhibit `A' and made a part of this petition." The exhibit attached to the petition showed each policy number, the effective date and the amount due thereon as well as each credit due the defendant with the policy number and date thereof. Also attached to the petition was a notarized statement of the treasurer of the plaintiff company to the correctness of such account. The defendant filed general and special demurrers to the petition which were overruled and it is to such judgment that the defendant now excepts.
1. The defendant relies on the case of Parker Heating Co. v. Minneapolis-Honeywell Regulator Co., 102 Ga. App. 27 ( 115 S.E.2d 410), to support its contention that the exhibit attached to the petition was insufficient and that its demurrers pointing out such defects should have been sustained. In that case there was no allegation as to items of merchandise or services sold, nor did the exhibit attached to the petition disclose such information and the defendant was not apprized of the nature of the claim against him so as to enable him to prepare his defense, nor was the pleader, under the allegations, confined to a particular cause of action. See also Kilgore v. Gulf Oil Corp., 102 Ga. App. 619 ( 117 S.E.2d 199), where it was held that, in an action on an open account by an oil company the bill of particulars merely set forth monthly totals of "petroleum products, services and auto accessories," such bill of particulars was insufficient to confine the plaintiff to a particular cause of action and fairly apprize the defendant of the character of the claim against him. Such is not the case here, for the bill of particulars in the present case confined the plaintiff to a recovery on specified insurance policies, and the information given did apprize the defendant of the claim against it. In Henry Darling, Inc. v. Harvey-Given Co., 40 Ga. App. 771 (2) ( 151 S.E. 518), also a case on open account for insurance premiums, it was held that a bill of particulars in greater detail than the one in the case sub judice was sufficient as against demurrer, but it was not held in that case that all the information therein alleged was necessary in order to withstand special demurrer. It was there said: "In a suit upon an account, a bill of particulars should be attached to the petition; in other words, the account should be itemized, although unnecessarily minute and detailed statements are not required. In this respect the petition will be sufficient if it plainly, fully, and distinctly sets forth the ground of complaint or cause of action relied on. In the instant case the petition was not subject to special demurrer because the account sued on was not sufficiently itemized."
The bill of particulars in the case sub judice was sufficient and the defendant's special demurrers thereto were properly overruled, and the general demurrer, based on the special demurrers being sustained, was properly overruled.
Judgment affirmed. Felton, C. J., and Bell, J., concur.