11 N.W.2d 442 | N.D. | 1943
This proceeding seems to be inspired by Banquo's ghost, for here we have an appeal from an order sustaining a demurrer to a complaint, which sets forth that in January, 1928, one Henry J. Jacobson was insured by the defendant company against loss of life by accident, that he died July 23, 1938, that action was heretofore brought upon the policy, recovery had thereon, the judgment paid, and now the matter appears in this court for the fourth time.
In
When the remittitur was received by the district court, upon the affirmance of the judgment, plaintiff here moved the court for an amendment of the amount recovered in the action and set forth in the judgment, because of her failure to include in her complaint the additional sum now made the basis for the action here. The trial court granted the motion and upon appeal the trial court was reversed. Jacobson v. Mutual Ben. Health Acci. Asso.
The plaintiff thereupon commenced this action and in her complaint alleged among other things: *111
"5. That on the 17th day of October, 1938, the Plaintiff did commence an action . . . for a recovery of Part A of said policy, to-wit: the sum of $2000.00 for loss of life; . . . recovered a judgment for said sum, which was duly paid by the Defendant, but in accepting payment and giving satisfaction of said judgment, the Plaintiff did in said written satisfaction reserve all rights of recovery under said policy of insurance upon Part B thereof; that this present action is for the recovery of the sum of $1800.00 under Part B of said policy; that at the time the Plaintiff brought said action under Part A only, under said policy, and at all times since both the Plaintiff and her attorney at the time of bringing the first action were ignorant of the facts in regard to the constituent elements of her causes of action, . . . were ignorant of the true amounts or items of her claim, and . . . at all times herein mentioned up until the judgment was satisfied were ignorant of the full extent of the wrong received and injuries done to her; that . . . ignorance . . . of what was omitted in her first cause of action herein mentioned, was due to a fraudulent concealment thereof by the Defendant; that such fraudulent concealment thereof by the Defendant consisted of the following facts among others:
"(a) The said insurance policy was so drafted and framed so as to make it appear to the ordinary reader thereof that the total amount that the beneficiary could recover for loss of life was $2000.00. This feature is incorporated under Part A of said policy; that Part B of said policy which provides an additional payment of $200.00 for each year's renewal of said policy, there shall be added the sum of $200.00 to the death benefit; that this feature of said policy, . . . is so smoke-screened and camouflaged by the heading of Part B, so as to lead the ordinary reader to believe that Part B did not modify Part A.
"(b) That . . . from the beginning of the litigation to the end thereof, the Defendant well knew that the Plaintiff if entitled to anything, was entitled to recover for nine premiums paid after the first year, and well knew that if she was entitled to recover $3800.00 instead of $2000.00 but notwithstanding that fact, the said Defendant fraudulently remained silent and never intimated to either the District Court or the Supreme Court of said provision of said policy, nor did the Defendant ever intimate to the Plaintiff or her attorney the existence of *112 Part B in said policy; that the Defendant well knew that the Plaintiff's elimination of said Part B in said other action was due to ignorance of the existence of Part B, and that same was omitted from said other action by reason of the fraudulent concealment and silence of the Defendant insurance company; that the Defendant's attorney never knew from the beginning of the action until the judgment was satisfied of the existence of Part B in said policy; that the Defendant fraudulently concealed the matter from its attorney; that in so far as the attorney for the Defendant and the attorney for the Plaintiff is concerned there existed a mutual mistake as to the existence of Part B of said policy; that said Part A and Part B are two separate promises; that both the Plaintiff and her attorney at all times used due diligence to ascertain the amount she could recover under said policy; that by reason of the fraudulent character and frame-up of the policy, both the Plaintiff and her attorney were misled as to the true amount she was entitled to recover under said policy, all of which was due to the fraudulent conduct and action of the Defendant, as aforementioned."
The policy is attached to and made a part of the complaint.
The defendant demurred on the ground: "That the facts alleged in said complaint are insufficient to constitute a cause of action against this defendant." The court sustained the demurrer and the plaintiff appeals.
Under the demurrer two propositions were advanced: "That the plaintiff is barred by contractual limitation on the time for filing suit" and "that plaintiff is barred by a former judgment," or, as appellant states it:
"1. That Plaintiff's claim is barred by the limitation provision in the policy, as to time of bringing action.
"2. That the matter involved in this action has been adjudicated in a prior action."
The first page of the policy sets forth, in 24 point Italic type, one quarter of an inch high, the amount of monthly benefits and of death benefit and the amount of maximum monthly death benefit.
"Monthly Benefits ................. $100.00 "Maximum Monthly Benefits ....... 200.00 Death Benefit ..................... 2,000 Maximum Death Benefit ............. 4,000 *113
Immediately following, it sets forth in 10 point black face type:
"If the Insured shall, through accidental means, sustain bodily injuries . . . and result in any of the following specific losses . . . the Association will pay:
"For Loss of Life .............................. $2,000.00 ".......... ".......... "..........
"Part B" is written immediately after "Part A," with the same prominence, and in 10 point light face type. Thus, the amount recoverable for loss of life is stated in "Part A," and "Part B" immediately thereafter shows the amount to be added to death benefits for each year's renewal of the policy until the total amount reaches $4,000.00.
In the action set forth in
The complaint here admits there was a prior action by the same plaintiff, against the same defendant upon the same contract, for the same accident, with complete settlement of that judgment obtained therein for all she demanded in her complaint; and to avoid the principle of res judicata she sets forth in her complaint the alleged reasons why she failed to include in the former action a demand for recovery under what is known as "Part B" of the contract.
As stated in Dennis v. Pease,
It is clear from the complaint that plaintiff has divided her cause of action. She recovered for part of what was due her under the contract — the portion due under "Part A." Her cause of action was her right, under the insurance policy, arising because of the death of her husband. The term "cause of action" is defined in Noonan v. Pardee,
The term "cause of action" and the term "claim" are substantially synonymous. People's Mercantile Co. v. Farmers' Cotton Finance Corp.
It is a familiar doctrine "that causes of action may not be divided, and that one who has availed himself of a part of a single claim or obligation in an action or defense is estopped thereafter from enforcing the remainder of it." John Miller Co. v. Harvey Mercantile Co.
However, there are exceptions to this general rule, and plaintiff seeks to avail herself of some of these exceptions. In Hyyti v. Smith,
There need be no argument concerning this principle. It is founded on ethics and equity. But the citation has no bearing on this case. No fraud is shown by the allegations of the complaint. The allegations in the complaint as to the "smoke-screening and camouflaging" of "Part B" of the policy dealing with increased benefits are without probative value. Mere statement that fraud was committed is an opinion. In pleading fraud facts, not conclusions, must be stated (New Bank v. Kleiner,
The complaint sets forth no fraud on the part of the defendant. The allegation that the defendant was guilty of fraud because it remained silent as to the amount which could be recovered against it does not show fraud. There is nothing in the complaint which shows the plaintiff *116 was in any way misled by word or action on the part of the defendant or defendant's counsel. Neither is there anything whatever in the complaint to indicate any fraudulent concealment by the defendant of any provisions in the policy, despite the allegation therein.
Another assumed exception to the general rule urged by plaintiff is that of "mutual mistake of fact." There is no showing of mutual mistake of fact in this case. It was oversight or negligence, for the policy contract is explicit and full.
The complaint alleges that the plaintiff and her counsel, at the time of bringing the former action, were ignorant "of the facts in regard to the constituent elements of her causes of action," and "were ignorant of the true amounts or items of her claim," and "were ignorant of the full extent of the wrong received and the injuries done to her." The injury she sustained was the death of her husband. She sought to recover on this policy as insuring him against death through accident. Apparently she neglected to read "Part B" in calculating the amount of the recovery to which she would be entitled, in case she could recover at all.
When we consider the policy and the complaint, it is very clear that the failure to include the item of $1,800.00 in the former action was due solely to neglect, not in any way induced by the defendant, nor by the format of the policy.
Plaintiff places great reliance on Vineseck v. Great Northern R. Co.
In the case at bar the allegations of the complaint fail to establish any kind of a mutual mistake. The complaint shows whatever mistake was made was caused by the oversight or negligence of the plaintiff herself and so far as the allegations of fraud are concerned they amount to nothing.
But plaintiff urges the question of res judicata cannot be raised by demurrer. Ordinarily, res judicata is a defense to be raised by answer. Borden v. McNamara,
The "failure to state facts" is measured by the allegations of the complaint. The "facts" stated comprise the whole body of facts set forth. The failure to state a cause of action is not confined to mere omission, but may be demonstrated by affirmative statements in the complaint. If the pleader sets forth facts that show affirmatively he has no cause of action then the complaint fails to state a cause of action. As stated in Tappan v. Evans,
The Supreme Court of Maine in Miles v. United Box Board Co.
This rule is clearly foreshadowed in our own decisions. In Beyer v. North American Coal Min. Co.
The district court was correct in sustaining the demurrer to the complaint and this disposes of the case presented to us. Hence, we need not pass upon the other proposition raised by defendant that the "plaintiff is barred by contractual limitation on the time for filing suit." The judgment of the district court is affirmed.
MORRIS, Ch. J., and CHRISTIANSON, BURKE and NUESSLE, JJ., concur.