First National Bank v. Dakota Fire & M. Ins. Co.

• Decision Date: 27 December 1894
• Citation: 6 S.D. 424,61 N.W. 439
• Parties: FIRST NATIONAL BANK OF BATON ROUGE, Plaintiff and respondent, v. DAKOTA FIRE AND MARINE INSURANCE CO., Defendant and appellant.
• Court: South Dakota Supreme Court

6 S.D. 424, 61 N.W. 439 (1894)

FIRST NATIONAL BANK OF BATON ROUGE, Plaintiff and respondent, v. DAKOTA FIRE AND MARINE INSURANCE CO., Defendant and appellant. South Dakota Supreme Court Appeal from Circuit Court, Davison County, S.D. Hon. D. Haney, Judge Reversed J. L. Hannett Attorneys for appellant. A. E. Hitchcock Attorneys for respondent. Opinion filed Dec. 27, 1894

FULLER J.

This was an action on a fire insurance policy covering certain property mentioned in the complaint, and particularly described in said policy of insurance, to the provisions of which the pleader directs special attention by making profert thereof, and by attaching the same to his complaint, and by the use of the following averment:

“Which property is more fully described in the policy of insurance, a copy of which is hereunto annexed, marked ‘Exhibit A,’ and is expressly made a part of this complaint.”

From the recitals of this policy, we quote the following:

“The amount of loss or damage to be estimated, … and to be paid to the assured or his legal representatives sixty days after due notice and satisfactory proofs of the same are made by the assured, and received in their office in Mitchell, in accordance with the terms of this policy. …”

On the ground that the complaint does not state facts sufficient to constitute a cause of action, defendant and appellant demurred in the court below; and from an order overruling the demurrer, and from a judgment entered thereon this appeal is taken.

The only objection urged and relied upon for a reversal of the judgment is that the complaint fails to state that 60 days had elapsed and expired after notice and proof of loss had been made, and before the commencement of the action. Evidently plaintiff’s object in bringing suit was to recover judgment against defendant for an amount considered due at the commencement of the action, according to the terms of the contract of insurance; and unless the complaint states facts sufficient, if proved, to support a judgment, the demurrer should have been sustained. Unless the existence of a cause of action due and enforceable at the commencement of the suit is disclosed by its averments, the complaint does not contain a plain and concise statement of the facts constituting a cause of action, and fails to meet the statutory requirements in that regard. Comp. Laws, § 4970. The demurrer based upon the ground that the complaint does not state facts sufficient to constitute a cause of action presents for the consideration of the court the entire pleading assailed; and the contract of insurance, made a part of the complaint, should be considered, so far as material, in testing and determining the sufficiency thereof. To the facts stated, and to their reasonable inferences, the evidence must be directed and confined; and when, by the omission of a material averment, a complaint fails to state a present liability existing in favor of the plaintiff and against the defendant, the question may be raised by demurrer.

The stipulation contained in the contract of insurance, which is made a part of the complain, gave defendant 60 days in which to consider the proof of loss, after the same was furnished by plaintiff and received at the home office of defendant, and for the purpose of exercising its rights to investigate the origin and circumstances of the fire, the extent of the loss, its liability, if any,...