Board of Education v. Alliance Assur. Co.

159 F. 994, 1908 U.S. App. LEXIS 5039
CourtU.S. Circuit Court for the District of Northern California
DecidedFebruary 3, 1908
DocketNo. 14,198
StatusPublished
Cited by6 cases

This text of 159 F. 994 (Board of Education v. Alliance Assur. Co.) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Northern California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Education v. Alliance Assur. Co., 159 F. 994, 1908 U.S. App. LEXIS 5039 (circtndca 1908).

Opinion

VAN FLEET, District Judge.

This is an action on a policy of fire" insurance upon property in the city and county of San Francisco which, among other exemptions from liability stated therein, provides that:

“This company shall not be liable for loss caused directly or indirectly by earthquake.”

Relying on this exception, defendant in its answer sets up two separate defenses: (1) “Defendant alleges the fact to be that the fire mentioned in the complaint, and the loss thereby and by reason thereof in the complaint specified and alleged, was caused directly by earthquake, and that but for such earthquake said fire and said loss would not have occurred.” (2) “Defendant alleges the fact to be -that the fire mentioned in the complaint, and the loss thereby and by reason thereof in the complaint specified and alleged, was caused indirectly by earthquake, and that but for such earthquake said fire and said loss would not have occurred.” To these defenses plaintiff has demurred, and claims that the pleas are not sufficiently definite and certain, either under the general rules of law or under section 437a of the Code of Civil Procedure of this state, enacted March 21, 1907. St. 1907, p. 836, c. 447. The defendant, on the other hand, claims that the pleas are good under the general rules of pleading, and that said section 437a is invalid. These propositions will be considered separately.

1. In pleading the breach of a contract it is well settled that it is sufficient to plead the breach in the language of the contract. So, [996]*996if a liability is to attach upon a certain condition, that condition may be pleaded in the language of the contract. Thus, if defendant’s liability dépends upon the destruction of the property by fire, a general allegation in the complaint that at a certain time the property was destroyed by fire is sufficient. It is not necessary to allege how the fire originated or how it spread to the property insured. So, if a policy insures property against damage by earthquake a general allegation that at a particular time the property was damaged by earthquake would be sufficient. It would not be necessary to allege the manner in which the earthquake operated to damage the property, whether it opened up the earth and swallowed the building, or merely shook it down or caused another building to fall upon it, or short-circuited electric wires or overturned a stove and set it afire, nor where any of its manifestations occurred or originated. If this is the correct rule of pleading as regards the plaintiff, it would seem to be equally so as regards the defendant. If the policy provided that the company should not be liable if the property should be destroyed by fire, a general allegation in the answer that it was destroyed by fire would seem to be sufficient, without alleging the place where the fire originated or the manner in which it destroyed the property. So, if the policy, as in the case at bar, provided that the company should not be liable if the property should be destroyed by earthquake, a general allegation that it was so destroyed would seem to be sufficient. That such pleas are sufficient is amply supported by authority. Thus, where the policy insured against the fraud or dishonesty of an employé, a general allegation of loss by reason of “various acts of fraud and dishonesty on the part of” the employé was held sufficient. Bank of Timmonsville v. Fidelity, etc., Co. (C. C.) 120 Fed. 315. So, where the policy insured against “physical bodily injuries effected * * * by external, violent, and accidental means,” a general allegation that “the insured was killed, his death resulting solely from physical bodily injuries proceeding from and inflicted by external, violent, and accidental means,” was held sufficient. Railway Officials’, etc., Ass’n v. Armstrong, 22 Ind. App. 406, 53 N. E. 1037. See, also, to same effect, McElfresh v. Odd Fellows’ Acc. Co. of Boston, 21 Ind. App. 557, 52 N. E. 819; Railway Officials’, etc., Ass’n v. Beddow, 112 Ky. 184, 65 S. W. 362. The same rule has been applied to a plea. Thus, in Seebass v. Insurance Company (C. C.) 82 Fed. 792, the defendant pleaded that the deceased had failed to pay a certain mortuary call. To this plea plaintiff demurred upon the ground that' “it does not legally appear that the plaintiffs’ intestate was obligated by the contract of insurance to pay the mortuary call specified in the plea, and that by reason of such nonpayment the contract became null and void.” In overruling this demurrer the court said:

“An assignment of a breach, in the words of the contract, when no question of law is involved, is good. 1 Chit. Pl. 332. It is only necessary that the plea contain sufficient matter which, if substantiated by proof, will sustain defense. Dewees v. Insurance Co., 34 N. J. Law, 244. Whether the mortuary call in this case was properly made, or whether the assured had the required notice, or failed to pay in due time, are questions of fact, to he determined by. the jury from the evidence. No doubt, the burden is on the defendant to [997]*997prove tlie fads showing valid assessments made in strict conformity with the contract and the by-laws, but that is a matter of proof, not pleading. The plea in this case gives notice to the plaintiffs of the matter which the defendant sets up in defense of its action, and a joinder therein will, upon the trial of the cause, put the defendant to its proof that it lias been absolved of its obligation by the failure of the assured to perform some duty imposed upon him by the contract.”

The cases relied upon by plaintiff contain nothing contrary to this rule.

In the case of Studwell v. Insurance Co., 17 Hun, 602, the defendant pleaded that the insured had been guilty of fraud in answering “No” to a question relating to a great number of diseases. The court held that the plea should have stated in respect to which of the many diseases the answer was false. In that case the contract in fact contained as many separate warranties as there were diseases enumerated, and, of course, defendant was compelled to specify which particular warranty it relied upon.

In Insurance Company v. Bailey (Ky.) 78 S. W. 119, the defendant relied upon a false representation as to the business of the insured, alleging that the additional business not disclosed materially increased the risk without alleging the facts from which such increase could be inferred. This was held insufficient on the ground that fraud cannot be pleaded generally, but every fact constituting the fraud must be alleged. That rule has no application here.

The cases of Reed v. Insurance Co. (N. J. Sup.) 65 Atl. 1053, and Insurance Co. v. Overturf, 35 Ind. App. 361, 74 N. E. 47, held that a plea that the loss was caused by “civil authority,” without showing that the person making the order for the destruction actually had civil authority to do so, is insufficient. The reason of this is that where a term used in a contract involves a mixed question of law and fact, the pleader will not be permitted to draw" his conclusions as to the law as well as the fact. As to what is a “fire” or an “earthquake,” or “dishonesty,” or “bodily injury by violent and accidental means,” is a pure question of fact, but loss by “civil authority” involves, first, the legal question of authority and, second, the fact of destruction by that authority. The first cannot be decided by the pleader, the second may. After the authority is established by proper allegation, the destruction may be alleged generally.

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Bluebook (online)
159 F. 994, 1908 U.S. App. LEXIS 5039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-education-v-alliance-assur-co-circtndca-1908.