Equitable Life Assurance Society of the United States v. Weil

Cook, J., delivered the opinion of the court. Appellee filed his' bill of complaint in the chancery court of Warren county against appellant to enforce payment of a balance claimed to be due complainant out of profits on a tontine policy, which it was alleged consisted of “the accumulated surplus in cash to be apportioned to complainant under said contract.” It is further averred that complainant was entitled to receive on the completion of his tontine period, as his portion of the accumulated surplus, a sum in excess of twelve hundred and sixty-two dollars and thirty-one cents; that he has no means of knowing the exact amount, but that the exact amount was known to defendant and can be shown by its books, and. complainant is entitled “to a full, accurate, and detailed showing from defendant and to have an accounting of ‘its said trust and agency;’ ” that at the completion of his tontine period defendant falsely represented to him that only four hundred and fifty-three dollars and thirty cents was due to him; that complainant, relying on said statement as true, accepted such sum in payment, under protest, being misled and fraudulently induced thereto by defendant, and in ignorance of the true sum due. To this bill of complaint a demurrer was interposed which was overruled, and an appeal was granted to settle the principles of law involved in the case. We deem it unnecessary to decide whether the bill was for discovery and relief, or simply for an accounting, because in the view taken by us it is immaterial whether the bill be considered the one or the other. It will be [198] observed, that at the expiration of the tontine period the insurance company tendered and paid to appellee an amount which it claimed and represented to be the true amount due under the terms of the contract. Appellee accepted the amount tendered, under protest, beheving that it represented what was due him out of the accumulated surplus. Just why he accepted it- under protest, when he believed that he was getting all due him under his contract, does not appear. The right to reopen the settlement' had between appellant and appellee and to have an accounting, or discovery, is predicated upon the charge of fraud. The bill does not •set out any facts or circumstances which go to make up the alleged fraud, but the court is asked to decree that the defendant was guilty of misrepresentation and fraudulent practices without a single concrete fact being alleged upon which the court could base its decree. The simple charge of fraud or untruthfulness may raise an issue to be settled by the wager of battle, but in a court of equity it is necessary to state something more than the conclusions of the pleader; mere epithets are not sufficient, and the defendant is not required to deny or explain. If, as complainant alleges the payment to him was inequitable and unfair, he must have been in possession of some facts, or was able to relate some circumstances, which would justify the court in reopening the settlement. True, he says he is so informed and believes, and so represents the facts to be; but this, at last, means only that his informer told him merely that he had been defrauded, or put him in possession of some facts leading to this conclusion, and which he should have stated to the court for its consideration and judgment. This court has clearly stated the rule where fraud is relied on as a basis of relief as follows: “No principle of equity jurisprudence is more firmly established than that, where fraud is relied on as a basis of relief sought from a chancery court, the facts on which the charge of [199] fraud is predicated must be specifically stated with full •definiteness of detail. No general averment of a fraudulent course of business, and no bare statement of a corrupt design on the part of the defendant, is sufficient. The acts themselves which are claimed to be fraudulent must be clearly set out. It must further appear, by definite averment, in what manner the fraudulent acts wrought injury to the complainant. Fraud cannot be inferred, but must be distinctly charged, and with such fullness and precision that a court of chancery would be enabled to grant full and .complete relief and redress should the bill of complaint be taken as confessed. A court of equity, from a mere vague and indefinite statement that a certain course of conduct was in pursuance of a fraudulent scheme, will not infer fraud on the part of the defendant, and consequent injury to the complainant.” Weir v. Jones, 84 Miss. 602, 36 South. 533, and cases there cited. Coming now to the consideration of the other questions involved, we are of the opinion that in the interpretation of this contract the decisions of the New York courts should be followed. This rule the Supreme Court of the United States announced for its guidance in cases involving similar questions as are presented in this case. Equitable Life v. Brown, 213 U. S. 25, 29 Sup. Ct. 404, 53 L. Ed. 682. The complainant below also predicated his right to a discovery or accounting upon the theory that the relations between the assured and insurer were of a fiduciary character, and that the insurance company held the accumulated, profits as trustee for the policy holders. The supreme court of New York, in response to a like allegation in a bill involving the construction of a policy similar to the one in the instant case, said: “He claims now to maintain the action and to have the right to an accounting upon the grounds: (1) That the relation between the plaintiff and defendant is not one solely of [200] contract, but that as to the participation in the profits of this tontine system, that relation is similar to one of trustee and cestui que trust. . . . As to the first, we are convinced, after a careful examination of the character of the relations existing between these parties, that it cannot be said that the defendant is in any sense a trustee of any particular fund for the plaintiff, or that it acts as to him and in relation to any such fund in a fiduciary capacity. It has been held that the holder of a policy of insurance even in a mutual company was in no sense a partner of the corporation which issued the policy, and that the relation between the policy holder and the company was one of contract, measured by the terms of the policy.” Uhlman v. New York Life, 109 N. Y. 421, 17 N. E. 363, 4 Am. St. Rep. 482. The Supreme Court of the United States followed the New York courts, saying: “They lay no foundation for the jurisdiction of a court of equity in such a case, unless it appears that the relation between the policy holder and the defendant is that the latter is the trustee of the former by reason of the trust relation between them resulting from the insurance policy. The complainant’s contention, as above stated, that there is such a trust in the fund mentioned, has never been regarded as the law in the state of-New York, nor anywhere else so far as any case has been cited on the subject.” Equitable Life v. Brown, 109 U. S. 25, 29 Sup. Ct. 404, 53 L. Ed. 682. We think these cases settle the question of trusteeship, and will be adopted as the correct interpretation of the contract to be construed in this case. It is insisted that this court in the case of Clark v. Equitable Society, 76 Miss. 22, 23 South. 453, has settled the principles of this case in favor of appellee; while appellant contends that the doctrine announced there is unsound and should be overruled should that case again come to this court. It is also said that the Clark case is not this case, to which statement we agree. It was held [201] in that ease the assured was entitled to an accounting under the allegations of the bill, and it will be noted that the bill set out specifically and in detail the facts upon which complainant relied for an accounting. The Clark case is, however, authority for the position assumed by appellant here — that the rights of the parties are to be measured by the terms of the policy. The court in defining the position of Mrs. Clark said: “She is a creditor, pure and simple, seeking to enforce the performance by the appellee of a written contract, and to that end she asks an accounting and discovery.” We do not wish to recede from the principles announced in the Clark ease,' nor do we deem it necessary to modify anything there said by the court; we only call attention to the clear distinction between the present case and the case then before the court. The bill of complaint failing to set out any facts from which the court can infer fraud, the demurrer should for this reason have been sustained. Decree here reversing the decree of the chancellor, sustaining the demurrer, and dismissing the bill. Decree reversed, and bill dismissed.