Stephens v. American Fire Insurance

Bartch, J.: This is a suit on a fire insurance policy to recover for loss occasioned by fire. The defendant interposed a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and judgment entered in favor of the plaintiff for $938 and costs. This appeal was prosecuted from the order overruling the demurrer and from the judgment. The complaint, after alleging the corporate existence of the defendant, avers that the plaintiff, at the time of its insurance and destruction by fire, was the owner of the property in question; that said property was situated on Washington avenue, in Ogden city, Utah Territory; that on the 30th of November, 1895, in consideration of the payment of a premium of $17.50, the defendant, by its general agent, “made their policy of insurance in writing, which is hereto attached, and made a part of this complaint”; that on December 15, 1895, the insured property was greatly damaged, and in part destroyed, by fire, to the plaintiff’s loss thereby in the sum of $1,200; that between the 15th and 25th of December, 1895, the plaintiff furnished proof of the destruction and loss, and otherwise performed all of the conditions of said policy on her part; and that on February 28, 1896, defendant refused to pay such loss, and denied and disclaimed liability. Counsel for the appellant insist that the complaint, independent of the insurance policy, does not state a cause of action, and that, notwithstanding the express averment to that effect, the policy constitutes no part of [267] tbe complaint, and cannot be considered in determining its sufficiency. It is not claimed that tbe policy is not a properly executed and valid instrument, and tbe objection therefore goes to tbe practice of pleading by setting forth such an instrument in full. It amounts to this: because, in effect, there can be no difference in setting out an instrument in 7me verla and in annexing it, and by proper reference making it a part of tbe pleading. Possibly, as a matter of arrangement and convenience, tbe former mode would be preferable, but in either case tbe instrument becomes a part of the pleading, and, if one of these methods is objectionable, equally so is tbe other. Whether, in a suit upon a contract, tbe making of tbe instrument a part of tbe complaint is the best practice, it is not necessary for us to discuss. Such practice appears to be recognized in this state by statute, as will appear from section 3235, Comp. Laws Utah 1888, which reads as follows: “When, an action is brought upon a written Instrument, and the complaint contains a copy of such instrument, or a copy is annexed thereto', the genuineness and due execution of such instrument are deemed admitted, unless the answer denying the same be verified.” This section is identical with section 447 of the California Code of Civil Procedure, and was doubtless borrowed from that state, and the supreme court of California has repeatedly recognized the samé practice. Lambert v. Haskell, 80 Cal. 611; Ward v. Clay, 82 Cal. 502; Whitby v. Rowell, 82 Cal. 635; Johnson v. McDuffy, 83 Cal. 30; Emeric v. Tams, 6 Cal. 156; Hook v. White, 36 Cal. 299. The same method is also distinctly recognized by Mr. Estee in his work on Pleadings under the Code. 1 Estee, PI. § 735. See, also, Budd v. Kramer, 14 Kan. 85; State v. School Dist., (Kan.) 8 Pac. 208; Prindle v. Caruthers, 15 N. Y. 425; Elbring v. Mullen, (Idaho) 38 Pac. 404. Under this practice, however, a party cannot plead [268] matter of mere evidence. Nor will it relieve Mm from pleading by proper averment matters of substance which are preliminary or collateral to the instrument, and the instrument on which the action or defense is based must not be defective or ambiguous-, but must clearly and distinctly present the ultimate facts for w'hiph it is incorporated into the pleading, and on which the pleader relies. If it does not so present such facts, or is defective or ambiguous, it is incumbent upon the pleader to place upon it some construction by proper allegation, or else a demurrer will lie. It is also insisted by counsel for the appellant that there is no allegation that proof -of loss was furnished, or notice given, pursuant to the requirement of the policy. If this contention were admitted to be well tahen, it could not avail the appellant, because the complaint contains an averment to the effect that on the 28th day of February, 1896, the defendant company refused to pay the loss and denied and disclaimed any liability; and where an insurance company disclaims liability under the policy, and refuses to pay, proof of loss is not necessary. In such case the loss becomes payable immediately upon such disclaimer and refusal, and proof of loss is waived. West v. Insurance Soc., 10 Utah 442; Daniher v. Grand Lodge, 10 Utah 110. Many of the objections made to the complaint in this case cannot be considered on general demurrer. We are of the opinion the demurrer was properly overruled, and that the record contains no reversible error. The judgment is affirmed. Zane, O. J., concurs.