Daniels v. Andes Ins. Co.

• Court: Montana Supreme Court
• Writing for the Court: SERVIS
• Citation: Daniels v. Andes Ins. Co., 2 Mont. 78 (Mont. 1874)
• Decision Date: 31 January 1874
• Parties: DANIELS, appellant, v. ANDES INSURANCE CO., respondent.

2 Mont. 78

DANIELS, appellant,

v.ANDES INSURANCE CO., respondent.

Supreme Court of the Territory of Montana.

January Term, 1874.

Appeal from Third District, Lewis and Clarke County.

THIS action was tried by a jury that returned a verdict for Daniels, and a new trial was granted by the court, WADE, J. The 68th section of the Civil Practice Act, which is referred to in the opinion, is as follows: “In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts showing such performance; but it may be stated generally that the party duly performed all the conditions on his part, and if such allegation be controverted, the party pleading shall establish, on the trial, the facts showing such performance.”

CHUMASERO & CHADWICK, for appellant.

The insurance policy was made a part of complaint for the benefit of respondent. Appellant stated, generally, that he had duly performed all the conditions upon his part. This was sufficient, without stating the facts. Civ. Pr. Act, § 68.

If such an allegation be controverted, the party pleading must establish, on the trial, the facts showing such performance. In what manner must the defendant controvert the allegation to put the plaintiff upon proof of specific performance? This is the only question that appellant presents.

The New York statute is like our own. No proof can be offered of facts not put in issue by the pleadings. All special matter of defense must be pleaded. No special answer has been filed in this action, and the general denial of the performance of the conditions of the insurance policy by appellant is insufficient. N. Y. C. Ins. Co. v. N. P. Ins. Co., 20 Barb. 473; Com. Dig., tit. Pleader, C, 81; Marine Ins. Co. v. Hodgson, 6 Cranch, 206;Hotham v. East I. Co., 1 Term, 638.

The denial of each allegation of the complaint must be specific. Civ. Pr. Act, § 56. Respondent should have pointed out in what particular there was a failure upon the part of appellant to perform the conditions of the insurance policy.

Every material allegation of the complaint that is not controverted by the answer shall be taken as true. Civ. Pr. Act, § 73. The meaning of ““controverted” is the same in both sections (68, 73). Under the old practice it was not necessary to plead in a declaration each condition and its specific performance. Our statute requires respondent to set forth each breach of the policy that it relied upon as a defense. Respondent has not done this.

TOOLE & TOOLE, for respondent.

The representations contained in the application for the insurance policy are conditions precedent.

Section 68 of the Civil Practice Act admits of but one interpretation. 1 Van Santv. Pl. 196, 498, 499, 234, 237; Stoddard v. Treadwell 26 Cal. 305. The evidence shows that appellant violated the conditions of his insurance policy, in respect to the quantity of coal-oil and gunpowder kept on the premises.

SERVIS, J.

The appellant sued the respondent upon a policy of insurance, alleging in substance that the defendant was a corporation duly organized under the laws of the State of Ohio; that on the 1st day of April, 1872, he was the owner of a certain frame building, situate outside the garrison at Fort Ellis, in the county of Gallatin and Territory of Montana, containing certain goods, wares, merchandise and personal property, all of the value of $20,000, which the defendant, in consideration of the sum of $300, insured to the plaintiff against loss or damage by fire or lightning, and issued its policy of insurance accordingly, which policy is copied into plaintiff's complaint; that on the 3d day of April, 1872, said building and contents were totally destroyed by fire; that about the first day of June thereafter, the plaintiff furnished the defendant with a statement and proof of his said loss, and that he otherwise performed all the conditions of said policy on his part, and prays judgment for $5,000, the amount named in said policy, with interest, and for costs of suit.

To this complaint the defendant demurred, on the grounds that the same did not state sufficient facts to constitute a cause of action, and that the same was ambiguous, unintelligible and uncertain, which demurrer was overruled by the court, to which the defendant then excepted, and then filed its answer, which admitted the execution of the policy and the non-payment of the amount, as claimed, and denied the ownership, by plaintiff, of the property insured; that the loss amounted to the sum of $20,000; that plaintiff furnished proof of the loss, or that he performed or complied with the conditions of the policy on his part, and averred that one W. B. Cutter was part owner of the property in question; that the loss occasioned by said fire did not exceed over $2,000; that plaintiff made false and fraudulent statements in his application for said insurance, and that the covenants and warranties of the plaintiff formed a part of the consideration for said insurance; and that, by reason of the premises, the defendant is not liable to plaintiff on account of such loss, and prays judgment for costs.

Upon this state of the pleadings the parties proceeded to trial to a jury. The proceedings and evidence had on the trial are fully set out in the record, including the charge of the court, motions for nonsuit and bills of exceptions. The jury returned a verdict for the plaintiff for $5,153.87, upon which and for which the court rendered judgment for the plaintiff, and thereupon the defendant filed its motion for a new trial, alleging as grounds therefor:

First. Irregularity in the proceedings of the court, its orders and abuse of discretion, by which the defendant was prevented from having a fair trial.

Third. Insufficiency of the evidence to justify the verdict, and that the verdict was contrary to the evidence.

Fourth. Errors in law occurring at the trial, and excepted to by the defendant.

This motion for a new trial was sustained by the court, and a new trial granted, from which the plaintiff appeals to this court, and here seeks a reversal of the same.

The record in this case discloses not only a closely contested trial, but a voluminous amount of evidence; and if this court was required to review it all, our report would necessarily be of greater length than that of the trial below. But the presentation of the case here, and the conclusion to which we have arrived, somewhat relieves us from so arduous a task, although an examination of the sufficiency of pleading under our Code necessarily extends our report of the case.

The only question presented by the counsel for the appellant, and which they claim is decisive of the correctness of the order appealed from, is, in the language of their brief, as follows: “The question, and the only question, we present for the decision of this court is: In what manner must the allegations of the plaintiff's complaint be controverted by the defendant's answer in order to put the plaintiff upon proof of specific performance? And upon the determination of this one question, we assume, depends the correctness of the ruling of the court below in granting a new trial.”

This proposition assumes, that if the answer of the defendant was, in law, sufficient to put the plaintiff to proof of the specific performance of the contract on his part, that then he has failed, and that the ruling of the court below was correct.

To correctly determine this question, we must not only look to the pleading alone, but to the law regulating the same, and especially to that of our Code. The object of all pleading is, to ascertain the subject for decision. This consists in making each party state his own case, and collecting from the opposition of their statements the points in controversy.

It is common, to all systems of judicature, to require, on behalf of each contending party, before the decision of the action, a statement of his case. Out of the mode required for this statement arise the rules of pleading. These rules are different under various systems of judicature. The principles upon which they are required to be formed, how far they affect or govern the subsequent proceedings in the action, and the construction given to them, are not immutable rules of jurisprudence, but mere matters of practice under each code of laws, and must, therefore, essentially differ.

The Montana Code, while it could not, under our Organic Act, exclude common-law jurisdiction, has, seemingly, not merely modified the rules of pleading at common law, but abandoned them, and gone still further, and by the 47th section provided, that--“All the forms of pleadings in civil actions, and the rules by which the sufficiency of the pleadings shall be determined, shall be those prescribed in this act.”

The principal rules prescribed by the Code, as to pleading, are:

1. That they shall be in ordinary language.

2. That they shall be concise, and without repetition.

3. That they shall state facts which constitute the cause of action or defense.

4. As to form, the precise nature of the charge or defense shall appear from the allegations in the pleadings.

5. As to the substance, facts sufficient to constitute a cause of action or defense shall be stated.

The New York Code differs, in this respect, from ours: It omitted to as expressly abolish the common-law rules of pleading; hence the conflicting decisions of the judges of that State upon the subject of pleading, some of which have been referred to as authority in this case. Most of the judges of that State (not unlike many other good lawyers) undoubtedly preferred the common-law rules of pleading, were, in fact, unwilling to depart from them, and gratified by any contumely that could be thrown upon the Code. And a new system, under the moulding influences of such minds, could hardly receive a judicious or even fair interpretation. Single judges, having common pleas jurisdiction, to the number of thirty and upward, in different...