Driskal v. Mutual Benefit Life Insurance

Beck, J. (After stating the foregoing facts.) The court did not err in dismissing this case after the amendment filed by counsel for petitioner. It is unnecessary to enter into a discussion as to the merits of the original demurrer to the petition and the amendment offered thereto on the 16th of July. The court sustained this demurrer, and there is no exception to that ruling. Consequently, the first ruling sustaining the demurrer and allowing the petitioner a certain time within which to file amendments became- the law of the case. In sustaining the special demurrer which called for certain information, the court ruled that the defendant company was entitled to the information called for by the special demurrer, and that the petition was defective in the respects wherein it was claimed in the demurrer to be defective; and it is manifest that the amendment to the petition, which was made subsequently to the ruling sustaining the demurrer, did not meet the demurrer which had been sustained. Without taking up in detail all of the points of attack in the demurrer, attention is called to that part of the demurrer in which the demurrant asks “that said petitioner be required to set forth clearly and succintly. the payment by the insured of the premiums required to be paid by him, and, if said premiums were not paid, that said petitioner be required to set forth the terms, conditions, and circumstances under the non-forfeiture system referred to in the face of said policy as attached to said petition, under which it is claimed by petitioner that said insurance remained of force until the death of said in [538] sured.” In her petition the plaintiff alleges “that a copy of the face of said policy contract is hereto attached and made a part of this petition.” In the face of the policy it is provided that upon the failure of the insured to pay premiums at certain times specified “this policy shall, cease and determine, subject to the provisions of the company’s non-forfeiture system as indorsed hereon, with accompanying table.” It does not appear from the declaration whether the petitioner relied upon the payment of each and all quarterly premiums up to the time of the death of the insured, or whether she relied upon the provision in the non-forfeiture clause referred to in the face of the policy as being indorsed upon the policy. And the demurrer originally filed by the defendant asks for a declaration upon this subject;.and the sustaining of this demurrer was a ruling controlling in the case, as it was not excepted to, that the defendant was entitled to the information insisted upon in this part of the demurrer. The plaintiff did file the following amendment: “Plaintiff amends her petition by adding to paragraph 5 the following to be numbered 5 (a) : ‘Plaintiff avers that the said insured during his 'life, upon the several dates when the same fell due, paid, and the same were accepted by the defendant, all premiums due upon said life-insurance policy contract necessary to carry and to keep in force the said contract up and until the date of the death of the insured, to wit, December 20, 1911.’” An averment that the insured during his life paid all premiums due upon said life-insurance policy contract necessary to carry and keep in force the said contract, can hardly be regarded as a statement of a fact; it is rather a statement of a conclusion of the pleader; and even if it were a statement of fact, it is not the statement of facts which the defendant had insisted in its demurrer that it had a right to be put in possession of. It did not meet the ruling of the court sustaining the demurrers; and having failed to meet that ruling upon the demurrers, and no further amendment being offered or time requested in which to file further amendments, the court properly, in view of its former ruling, dismissed the petition. It is unnecessary to discuss certain other grounds of demurrer which appear in the record and which were sustained by the court; but it may be added that the amendment made failed also to meet [539] those grounds of demurrer which we have referred to above in a general way. Judgment affirmed. All the Justices concur, except Fish, C. J., absent.