Mutual Accident Ass'n of Northwest v. Tuggle

Mr. Justice Scholfield delivered the opinion of the Court: This is assumpsit by appellee, against appellant, on a certificate issued by the latter, so much whereof as is pertinent to the questions discussed in argument being as follows: “This certificate witnesseth, that the Mutual Accident Association of the Northwest, in consideration of the warranties and agreements made to it in the application for membership and of the sum of two dollars, do hereby accept Charles W. Tuggle, by occupation, profession or employment a traveling salesman, residing in Colchester, State of Illinois, as a member in Division A of said association, subject to all the requirements and entitled to all the benefits thereof, the principal sum represented by the payment of two dollars by each member in Division A of the association, as provided in its by-laws (which sum, however, is not to exceed $5000,) to be paid to Mrs. Tuggle, wife, if surviving, (in event of the prior death of said beneficiaries, and of the survivor of them, said sum shall be paid as provided in said by-laws,) within sixty days after sufficient proof that said member, at any time within the continuance of his membership, shall have sustained bodily injuries, received by or through external, violent and accidental means, within the intent and meaning of the certificate of organization of said association, and of its by-laws and the conditions hereunto annexed, and such injuries alone shall have occasioned death within ninety days from the happening thereof.” There are three counts in the declaration. In the first, this, policy is set out in hcec verba. In each of the other two counts - it is referred to and made part of the count as thus set out inhcec verba in the first count. In each count it is declared upon as an absolute promise to pay $5000. In neither count is there any averment of the number of members in Division A of the association, nor is there in either count any averment of what is “the principal sum represented by the payment of two dollars by each member in Division A of the association, as provided in its by-laws, ” or any averment of any fact from which the amount of that sum can be certainly determined. Appellant demurred, generally, to each count of the declaration, but the court overruled the demurrer, and appellant electing to stand by its demurrer, appellee’s damages were assessed by the jury at $5000, for which the court gave judgment. Appellant then moved in arrest of judgment, but the court overruled the motion. These rulings present the only questions for our determination. It is impossible to construe this certificate as an absolute promise to pay $5000, for its clear and explicit language is only that “the principal sum represented by the payment of two dollars by each member in Division A of the association, * * * to be paid to Mrs. Tuggle, wife,” etc.; and there is no other language, either directly or indirectly, promising to pay her any other sum. The words omitted, where we have placed stars, are not a promise to pay, but a restriction of the amount promised, by the language supra, to be paid. They say, “which sum,”—that is, “the principal sum represented by the payment of two dollars by each member in Division A of the association,”—is not to exceed, not that it shall be, $5000. And since each member is to pay but two dollars, it must follow, if the designated membership shall fall short of two thousand five hundred, the amount promised to be paid is less than $5000. But how is it possible for the court to know what is the number of members in Division A of the association? And without that knowledge there is nothing to justify, an assessment of any sum as damages. The familiar rule is,, in actions ex contractu the declaration must distinctly state the nature and essential points of the contract, either in the. terms of it or in substance, and according to its legcd effect,, "together with the breach. Gould’s Pleading, chap. 4, sec. 27; Hart v. Tolman, 1 Gilm. 1; Murphy v. Summerville, 2 id. 360. We think each count was defective in not averring facts ■from which the sum provided to be paid can be determined with certainty. Beneficial Society v. White, 30 N. J. L. 313, and Martin v. Equitable Accident Ass. 55 Hun, 574, are in point, and sustain this view. But this specific defect in the declaration was not pointed ■out, and it is contended that it is therefore waived. But general ■demurrers do not allege any particular cause, (1 Chitty’s PI. •663,) and they lie where the pleading is defective in substance. .(Ibid.) There was therefore no necessity, here, that this specific defect should Mve been pointed out by the demurrer. 'We can only know what the record shows, and it shows only the filing and overruling of a general demurrer. It is true that by section 24, chapter 110, of our Practice act, (Rev. Stat. 1874, p. 778,) it is provided that “at any time before final judgment in a civil suit, amendments may be allowed ■* * * in any matter, either of form or substance;” but this is only “on such terms as are just and reasonable,” and it is clear that it was not intended to place formal and substantial errors on the same ground, and to require all demurrers thereafter to be special, for in the Statute of Amendments and Jeofails, adopted at the same time, (Rev. Stat. 1874, chap. 7, p. 137,) it is provided, in section 3, that “no judgment shall be reversed in the Supreme Court for mere error in form, if the judgment be for the true amount of indebtedness or damages, ” which, of course, would have to be disclosed by the record; and in section 6, clause 9, “judgment shall not be arrested or stayed, after verdict, * * * for the want ■of any allegation or averment, on account of which omission a special demurrer could have been sustained,” thus implying that it might be for causes as to which a general demurrer could have been sustained, and also preserving the distinction, ■between general and special demurrers. We feel compelled to hold that the courts below erred in not sustaining the demurrer to the declaration. The judgments of the Appellate ahd circuit courts are therefore reversed, and the cause is remanded to the circuit court, with direction to that court to sustain the demurrer to each count of the declaration, and thereupon to allow appellee to amend the same, if she shall so desire. Judgment reversed.