Gill v. Manhattan Life Insurance

95 P. 89, 11 Ariz. 232, 1907 Ariz. LEXIS 92

Opinion

NAVE, J.

— Lillie S. Gill brought suit against the Manhattan Life Insurance Company to recover on a policy insuring the life of her deceased husband. The policy, set forth in the complaint, recites, among other considerations for the insurance, that it is issued “in consideration of the application for this insurance, and the statements and covenants therein contained, which are a part of this contract.” The application, also set forth in the complaint, contains the following: “It is expressly agreed on behalf of the applicant and of any person who shall have or claim any interest in any policy issued upon this application .... that no suit shall be brought against the company upon such policy after the expiration of two years from the time that the 'cause of action shall have accrued.” This action was instituted after the expiration of two years from the time of the accrual of the cause thereof. A special demurrer was interposed by the defendant, setting up that the'action is barred by the terms of the contract sued upon. The demurrer was sustained, and judgment thereon rendered against the plaintiff. From this judgment, plaintiff has appealed. The sole issue is the correctness of 'the ruling on the demurrer.

Plaintiff alleges in her complaint that at the time of the accrual of the cause of action she was under the age of twenty-one years, and that she attained her majority within less than two years prior to the institution of the action. She avers also that the defendant purposely and willfully concealed from her the contents of the application made by the deceased for the purpose of inducing her to delay the bringing of the suit until after the two years mentioned in the application had expired, and did purposely, willfully, and with intent to defraud her induce her to delay the bringing of this action until more than two years had elapsed after her cause of action had accrued; that she has never been able to obtain an inspection of the application; and that the copy attached to the complaint is a copy of said application as furnished to her by the defendant after repeated demands therefor, and that the same was not furnished to her until after the lapse of the two years mentioned in the application. No act of the defendant is pleaded tending to prevent the plaintiff from acquiring knowledge of the contents of the application, or to induce her to delay suit.

1. It is settled in this jurisdiction that an agreement in a contract of insurance limiting the time within which an action may be brought thereon to a period less than that prescribed by the statute of limitations will be enforced. Riddelsbarger v. Hartford Ins. Co., 7 Wall. (U. S.) 389, 19 L. Ed. 257.

2. It is also determined in this jurisdiction by authority specifically to the point, as well as by the elemental law of contracts, that terms may be incorporated in the policy of insurance by reference, and that, when so incorporated, they will be enforced as part of the contract of insurance. Connor v. Manchester Assur. Co., 130 Fed. 743, 65 C. C. A. 127, 70 L. R. A. 106.

3. The limitation upon this action being a matter of contract, and not a matter of statute, it applies to an infant as effectually as to one who has attained majority. Mead v. Phoenix Ins. Co., 68 Kan. 432, 104 Am. St. Rep. 412, 75 Pac. 475, 64 L. R. A. 79.

4. Appellant contends that the complaint is not obnoxious to demurrer by reason of the allegation that defendant concealed from plaintiff the contents of the application, and, with intent to defraud, induced her to delay the suit. Appellee urges that these allegations are of that variety denominated “conclusions of law” as distinguished from allegations of ultimate facts. The line of separation between a conclusion of law and an allegation of ultimate fact is as uncertain as the lines separating the cardinal colors in the spectrum. The distinction between them in matters of pleading more commonly is made where, coupled with allegations of fact, are allegations of conclusions, or inferences from' the facts. Where matters are so pleaded, it is unquestionable that a demurrer to the pleading does not admit these inferences. The court draws the inferences from the facts as pleaded and ignores the pleaded inferences. Dillon v. Barnard, 21 Wall. (U. S.) 430, 22 L. Ed. 673; United States v. Ames, 99 U. S. 35, 25 L. Ed. 295. On the other hand, an allegation which, if the details of fact were set forth, might properly be held to be a conclusion inferred from those details, may, when unaccompanied by details, very properly be held to be a pleading of ultimate fact, and not obnoxious to demurrer. If the adverse party desires fuller details, either for information or to lay a foundation for a demurrer, he should attack such a pleading by motion. Phillips v. Smith, post, p. 309, 95 Pac. 91. In the pleading before us the allegation of concealment may, in this light, be said to be the allegation of an ultimate fact; so also the allegation that the defendant induced the plaintiff to delay. The defect in the averment consists, not in that these are averments of inferences, but that they are averments of facts which, unsupported by other facts, are not sufficient upon which to predicate relief for the plaintiff from the contractual consequence of delay. No fact appears in the complaint which cast upon the defendant a duty to advise the plaintiff as to the contents of the application for the insurance. The adverbs “purposely” and “willfully” add nothing to the charge that the defendant concealed the contents of the application, for to conceal means purposely to keep from sight or discovery. While it is a rule of code practice that a pleading shall liberally be construed with a view to obtaining substantial justice between the parties, yet, on the other hand, complete defect of averment cannot be supplied by construction. The original application manifestly became a part of the records of the defendant company. Doubtless it was “purposely and willfully concealed” among the records of the defendant company from plaintiff, and from all the world except its custodians. It is not averred that any artifice was resorted to to induce the plaintiff to overlook the application; while the only allegation with respect to an endeavor upon her part to procure a copy thereof is coupled with the information also that she obtained it. The insurance policy itself, as we have noted, made express reference ,to the application so that plaintiff was put upon notice of its contents. Similarly the allegation that the defendant induced plaintiff to delay the bringing of the action must be disposed of. Mere characterization of the act as being “with intent to defraud the plaintiff” does not charge fraud. Cochise County v. Copper Queen C. M. Co., 8 Ariz. 233, 71 Pac. 946. Such an adverbial phrase may sufficiently define the purpose of the defendant, but the purpose of the defendant is of no moment if its acts were not such in law as to perpetrate fraud. Pullman’s Palace Car Co. v. Mo. Pac. Ry. Co., 115 U. S. 596, 6 Sup. Ct. 194, 29 L. Ed. 499. It may be conceded by virtue of this allegation in the complaint that by some action or inaction on the part of the company plaintiff was led to delay the institution of this suit; but, in absence of an averment of the facts by which she was so led, it cannot be determined that the defendant perpetrated a fraud upon her, or is for any reason estopped to take advantage of her delay. The allegations indeed are open to the interpretation that the cause of plaintiff’s delay was the concealment from her of the terms of the application, under which interpretation the allegation that she was induced to delay the suit would fall with the allegation that the contents of the application were concealed from her. There is nothing to suggest that even the earliest of her “repeated demands” for a copy of the application was made before the action was barred.

It follows that the demurrer was properly sustained, and that the judgment must be affirmed.

KENT, C. J., and CAMPBELL, J., concur. DOAN, J., dissents.