66 F. 253 | U.S. Circuit Court for the District of Montana | 1894
This is an action on what is termed an “accident policy.” The complaint contained this allegation:
“That, under the terms of said policy of insurance, defendant agreed that in case AY. J. Penrose did, during rhe continuance of said policy,' sustain such violent injuries, which alone should cause his death within ninety days from the time of the happening of such accident, then tile said defendant should pay to the plaintiff, if surviving, the sum of live thousand dollars; that the said AY. ,T. Penrose did during the continuance of said policy sustain such violent injury, which caused his death within ninety days from the happening thereof; and that defendant had due notice and proof thereof, as required by the terms of said policy.”
Plaintiff made the policy of insurance an exhibit and part of the complaint.
In looking at the policy of insurance, I find therein, after stating the amount for which said W. J. Penrose was insured, this;
“The said sum to he paid to Mrs. E. A. Penrose, wife, if surviving (if dead, to the leg-al representatives of the insured), after due notice and satisfactory proof that the insured has, during- the continuance of this policy, sustained such violent and accidental injuries as shall externally he visible upon his person. and which alone shall have caused his death within ninety days from the happening of such accident.”
Defendant demurred to the complaint, for the reason that the same did not state facts sufficient to constitute a cause of action. If the policy was as stated in the allegations of the complaint, I do not see but it states a canse of action. The trouble is, not that it does not slate a cause of action, but that plaintiff in her complaint has not stated the contract of insurance correctly. It is not the same contract set forth in the exhibit.
The rule in regard to the profert of a written instrument shows that the stating of a contract in haec verba was not considered, as setting forth a copy of a contract. Oyer of a contract could still be demanded. Id. 378-446; Shipman, Com. Law PI. 105. I do not think that in using the language that a contract should be stated according to its legal effect, or in haec verba, any different rule is sought to be established in this regard from what prevailed at common law. There are some decisions of the supreme court of California which seem to be to some extent in conflict with the views here expressed. Stoddard v. Treadwell, 26 Cal. 294; Murdock v. Brooks, 38 Cal. 596. A reference to an exhibit, however, to supply a deficiency in the allegations of a complaint, has been held by the same eourt not to be sufficient. City of Los Angeles v. Signoret, 50 Cal. 298. In the case of Blasingame v. Insurance Co., 75 Cal. 633, 17 Pac. 925, it was held that a variance between the allegations of a complaint and the facts appearing in a copy of a policy, attached to arid made a part of the complaint, could not be raised by a general demurrer that the complaint did not state facts sufficient to constitute a cause of action. To the same effect is the case of Mendocino Co. v. Morris, 32 Cal. 145. Taking these cases altogether, and I think it is evident that it cannot be considered settled that the citing of an exhibit as part of a pleading can be considered as taking the place of the positive allegations of the terms of a contract in a complaint, according to their legal effect or in the very terms of the contract.
The allegation in the complaint is that defendant made and issued to said W. J. Penrose a certain policy of insurance, a copy of which is thereto annexed, marked “Exhibit A,” and made a part of the complaint. Under this allegation there might be an issue joined