Scott v. Ætna Life Insurance

CONNOR, J. In Hoke v. Glenn, 167 N. C., 594, 83 S. E., 807, it is said: “It is the purpose of the Code system of pleading, which prevails with us, to have actions tried upon their merits, and to that end pleadings are construed liberally, every intendment is adopted in behalf *41 of the pleader, and a complaint cannot be overthrown by a demurrer unless it be wholly insufficient. If in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn, or however uncertain, defective, or redundant may be its statements, for contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader. It must be fatally defective before it will be rejected as insufficient.” This principle has been uniformly applied by this Court, which does not look with favor upon a demurrer to a complaint on the ground that the facts stated therein are not sufficient to constitute a cause of action in which the plaintiff is not entitled to relief. It is rarely the case that a complaint is so defective in its allegations that a demurrer on that ground, can be or should be sustained. McNeill v. Thomas, 203 N. C., 219, 165 S. E., 712, Staley v. Park, 202 N. C., 155, 162 S. E., 202, Joyner v. Woodard, 201 N. C., 315, 160 S. E., 288, Smithwide v. Pine Co., 199 N. C., 431, 154 S. E., 917, Smith v. Suitt, 199 N. C., 5, 153 S. E., 602, Bechtel v. Bohannon, 198 N. C., 730, 153 S. E., 316, Cole v. Wagner, 197 N. C., 692, 150 S. E., 339, Meyer v. Fenner, 196 N. C., 476, 146 S. E., 82, Seawell v. Cole, 194 N. C., 546, 140 S. E., 85, S. v. Trust Co., 192 N. C., 246, 134 S. E., 656, Hartsfield v. Bryan, 177 N. C., 166, 98 S. E., 379. Applying this principle to the facts alleged in the complaint in the instant case, we are of opinion that there is error in the judgment sustaining the demurrer and dismissing the action. For that reason the judgment must be reversed, to the end that the action may be tried on the issues raised by the answer to the complaint appearing in the record. The facts with respect to the cause of the death of the insured as alleged generally in the complaint are sufficient to' state a cause of action on the rider attached to and forming a part of each of the policies of insurance issued by the defendant, in which the plaintiff is named as beneficiary. It is alleged in paragraph 5 of the complaint that the death of the insured resulted directly and independently of all other causes from bodily injuries effected solely through external, violent and accidental means, within ninety days from the occurrence of such accident, and that said accident was evidenced by visible contusion or wound, and did not result directly or indirectly from any other causes or exceptions mentioned in the rider. On these facts the defendant, by the express language of the rider attached to and forming a part of each policy is liable to the plaintiff for the sum of $1,000, in addition to the face amount of said policy. These general allegations *42 are sufficient to constitute a cause of action and if they are sustained by tbe evidence at tbe trial, tbe plaintiff will be entitled to judgment as prayed for in ber complaint. Doubtless in anticipation of a motion by tbe defendant tbat ber general allegations be made specific, tbe plaintiff alleges in paragraph 6 of ber complaint tbat tbe death of tbe insured resulted from an accidental infection of bis blood stream, following tlic extraction of a tooth by a dentist, or from an operation made necessary by such infection. These specific allegations are not inconsistent with or contradictory of tbe general allegations of paragraph 5 of tbe complaint, and are therefore not determinative of tbe question presented by defendant’s demurrer. In Horton v. Travellers Ins. Co. (Cal.), 181 Pac., 1070, which was an action upon a policy of insurance containing a provision similar to tbat contained in tbe rider on which this action was brought, it is said: “As against a general demurrer, a complaint is sufficient when adopting the'language of tbe policy, it avers in general terms tbat tbe insured met bis death from bodily injuries effected directly through external, violent and accidental means, and tbat bis death was occasioned by such means alone, without averring tbe particular facts and circumstances attending tbe death or injury, as plaintiff has done in this case. Richards v. Travellers Ins. Co., 89 Cal., 170, 26 Pac., 762, 23 Am. St. Rep., 455; 1 C. J., 489. It is, it is true, tbe general rule tbat specific averments must be given preference over general averments, inasmuch as tbe general allegations are deemed explained, limited and controlled by tbe specific allegations; but this is true only where there is an inconsistency between the general and specific averments. In tbe absence of any inconsistency, tbe general averments, if necessary, may be looked to, to complete tbe essentials of a cause of action. If, in tbe instant case, tbe general allegations alone be looked to, tbe complaint unquestionably alleges a cause of action, and we think tbe specific aver-ments are entirely consistent with tbe general averments and with tbe statement of a cause of action.” We cannot anticipate what tbe evidence at tbe trial of this action on tbe issues raised by tbe answer to tbe complaint will be. For this reason, we shall not at this time undertake to review or to discuss tbe cases from other jurisdictions cited in tbe briefs filed in this appeal. We are of opinion tbat tbe general allegations of tbe complaint are sufficient to state a cause of action and tbat tbe specific allegations are not inconsistent with or contradictory of. tbe general allegations. For this reason tbe judgment dismissing the action must be Reversed.