Hyatt v. Humbird Lumber Co.

• Decision Date: 25 June 1918
• Citation: 31 Idaho 457,173 P. 1085
• Parties: W. R. HYATT, as Insurance Commissioner of the State of Idaho, Appellant, v. HUMBIRD LUMBER COMPANY, a Corporation, Respondent
• Court: Idaho Supreme Court

173 P. 1085

31 Idaho 457

W. R. HYATT, as Insurance Commissioner of the State of Idaho, Appellant, v. HUMBIRD LUMBER COMPANY, a Corporation, Respondent

Supreme Court of Idaho

June 25, 1918

CONSTITUTIONAL LAW-PLEADING AND PRACTICE.

1. It is incumbent upon the plaintiff to allege in his complaint all the ultimate facts essential to entitle him to recover otherwise the complaint is demurrable.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. R. N. Dunn, Judge.

Action to recover taxes and penalty. Judgment for defendant. Affirmed.

Judgment affirmed. No costs awarded.

T. A Walters, Atty. General, J. P. Pope, A. C. Hindman and J. Ward Arney, Assistants, and Black & Wernette, for Appellant, rely on authorities cited in Hyatt v. Blackwell Lumber Co., ante p. 452.

E. W. Wheelan and James E. Babb, for Respondent.

The fact that the property covered by the insurance policies is located within the state of Idaho would not give the state jurisdiction to enforce a tax or penalty against the insured if the contract was entered into outside of the state of Idaho, even though the property covered by the insurance policy is located within the state of Idaho. (Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832; Nutting v. Massachusetts, 183 U.S. 553, 22 S.Ct. 238, 46 L.Ed. 324; Delamater v. South Dakota, 205 U.S. 93, 10 Ann. Cas. 733, 27 S.Ct. 447, 51 L.Ed. 724; New York Life Ins. Co. v. Head, 234 U.S. 149, 34 S.Ct. 879, 58 L.Ed. 1259; Bartlett v. Rothschild, 214 Pa. 421, 63 A. 1030; Swing v. Brister, 87 Miss. 516, 6 Ann. Cas. 740, 40 So. 146; Western Massachusetts Mut. Fire Ins. Co. v. Hilton, 42 A.D. 52, 58 N.Y.S. 996; Atlas Mutual Ins. Co. v. Fisheries Co., 6 Penne. (Del.) 256, 68 A. 4.)

There is no allegation in the complaint that any of the contracts of insurance referred to in plaintiff's complaint were entered into in the state of Idaho, and no allegation that any act leading to the entering into of said insurance contract was performed within the state of Idaho, so that the demurrer was properly sustained. A complaint is to be construed against the pleader, even in code states. (Witham v. Blood, 124 Iowa 695, 100 N.W. 558; Beach v. Bay State S. S. Co., 30 Barb. (N. Y.) 433, 10 Abb. Pr. 71, 18 How. Pr. 335.)

RICE, J. Budge, C. J., and Morgan, J., concur.

OPINION

RICE, J.

This case in principle is identical with the case of Hyatt v. Blackwell Lumber Co., ante, p. 452 173 P. 1083, the only essential difference being that the case was disposed of on demurrer to the complaint, the demurrer having been sustained and a judgment thereupon entered dismissing the action.

The contention was that the complaint failed to state a cause of action and that it was uncertain, in that it did not allege that the contracts of insurance complained of were entered into and were to be performed within the state. The demurrer was...