Penn Mutual Life Insurance v. Keeton, 49 So. 736

Penn Mutual Life Insurance v. Keeton

49 So. 736 | Miss. | 1909

Mayes, J.,

delivered the opinion of the court.

It seems to be well settled that, before a judgment by default can be sustained, the declaration must contain such averments as are necessary to show a right to recover, and it is our judgment that this declaration is wanting in this essential. 23 Oyc. 740, notes 83, 84. The declaration alleges the making of the insurance contract on the 22d day of October, 1906. It makes the insurance contract an exhibit to the declaration, and alleges the payment of all premiums and the death of the insured on the 3d day of October, 1907, and while the policy was in full force. The declaration further alleges that “the defendant undertook and faithfully promised to pay the plaintiff, for herself and her minor children, upon the proof of the death of the insured being furnished said defendant within six months after the death,” etc.

The policy of insurance expressly stipulates as one of its conditions of liability, and this policy is made an exhibit to the declaration, that “proofs of death shall be furnished to the company at its home office, within six rdonths after the ascertained death of the insured, and in the form prescribed by the company.” It is thus seen that the declaration alleges that one of the conditions of liability is proof of death as provided in the policy, and the policy stipulates for this. Yet it is nowhere alleged in the declaration that this condition of the policy had been complied with, nor does the declaration allege such facts as would excuse the plaintiff from the compliance with this condition. The declaration states no cause of action until it show's that a liability under the policy was attached, and the liability did not attach on a mere showing of a valid contract of insurance and death; but by the terms of the policy liability attaches only when there is a valid contract, death, and proof of loss, or an allegation of fact which would excuse such proof.

It is well settled that, when there is a judgment by default, nothing will be assumed as proven beyond what is shown bn the face of the declaration, and when this test is applied, to this *714declaration it does not show a right to recover, because it does not show a compliance with the conditions of the policy by virtue of which liability under the policy attaches. See Cyc. 918. The cases of Globe Accident Ins. Co. v. Reid, 19 Ind. App. 203, 47 N. E. 947, 49 N. E. 291; Ishmel v. Potls (Tex. Civ. App.) 44 S. W. 615, and Sloan v. Faurot, 11 Ind. App. 689, 39 N. E. 539, are instructive along this line. In the case of Bradstreet v. Jackson, 81 Miss. 233, 32 South. 999, the decision of the court necessarily involved the holding that where a declaration failed, to state a cause of action, or show a right to recover, a judgment by default could not be sustained. The same thing was held in the case of Smith v. Gardner Hardware Co., 83 Miss. 654, 36 South. 9.

Section 808, Code 1906, referred to by counsel for appellee, the concluding clause of which provides that “neither shall judgment by default be reversed, nor a judgment after inquiry of damages be stayed or reversed, for any omission or fault which would not have been good cause to stay, or reverse the judgment if there had been a verdict on issue joined,” has no application where the declaration wholly fails to show a right to recover, and that is the case here. Such a judgment is simply void. This is expressly held in the cases of Wells v. Woodly, 5 How. (Miss.) 484; Haynes v. Ezell, 25 Miss. 242, and Gale v. Lancaster, 44 Miss. 413.

Reversed and remanded.