Jacobson v. Mutual Ben. Health & Accident Ass'n

• Decision Date: 28 September 1943
• Docket Number: 6898.
• Citation: 11 N.W.2d 442,73 N.D. 108
• Court: North Dakota Supreme Court

11 N.W.2d 442

73 N.D. 108

JACOBSON v. MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

No. 6898.

Supreme Court of North Dakota

September 28, 1943

Rehearing Denied Nov. 5, 1943.

Syllabus by the Court.

1. "A judgment rendered by a court having jurisdiction of the parties and subject-matter is conclusive of the rights of the parties in all other actions or suits between the same parties in the same or any other tribunal of concurrent jurisdiction, as to all questions or facts put in issue in the suit and actually adjudicated therein." Dennis v Pease et al., 61 N.D. 718, 240 N.W. 611, followed and approved.

2. It is general rule that causes of action may not be divided and for a breach of an indivisible contract there can arise but one cause of action. If in the action therein the plaintiff does not demand the entire relief to which he is entitled, he can not thereafter complain.

3. Where an item of a single cause of action has been omitted from the complaint because of the fraud of the defendant or by reason of the mutual mistake of the parties, the doctrine of res judicata will not apply to such omitted item.

4. A general allegation of fraud is not a sufficient statement upon which to predicate fraud; but the specific facts constituting the alleged fraud must be set forth.

5. Where plaintiff when commencing an action has at hand the means to know of and ascertain the amount of an item and negligently and carelessly fails to avail himself thereof, so that the item is omitted in the complaint, and this error was in no way induced by the defendant, nor the result of a mutual mistake of the parties, then the doctrine prevails that a party can not in one action sue for a part of that to which he is entitled and thereafter in a subsequent action sue for the omitted item when the right of recovery rests on the same state of facts.

6. Under a demurrer based on the ground that the complaint does not state facts sufficient to constitute a cause of action the court will examine the complaint not only with reference to failure to state matters necessary to constitute a cause of action, but also with reference to allegations of the complaint which show on their face that plaintiff is not entitled to the relief demanded.

7. When the complaint on its face sets forth matters which are a bar to the relief sought the complaint is subject to demurrer on the ground that it fails to state facts sufficient to constitute a cause of action.

J K. Murray, of Bismarck, for plaintiff and appellant.

Zuger & Zuger, of Bismarck, for defendant and respondent.

BURR, Judge.

This proceeding seems to be inspired by Banquo's ghost, for here we have an appeal from an order sustaining a demurrer to a complaint, which sets forth that in January, 1928, one Henry J. Jacobson was insured by the defendant company against loss of life by accident, that he died July 23, 1938 that action was heretofore brought upon the policy, recovery had thereon, the judgment paid, and now the matter appears in this court for the fourth time.

In 69 N.D. 632, 289 N.W. 591, a judgment in favor of the plaintiff was reversed and a new trial ordered. In 70 N.D. 566, 296 N.W. 545, the matter came before us after the new trial, and in the decision therein all of the pertinent facts are set forth with particularity. Therein the plaintiff here recovered judgment for loss of life by accident, in the full amount she demanded under the policy with interest, and the judgment rendered was affirmed by this court.

When the remittitur was received by the district court, upon the affirmance of the judgment, plaintiff here moved the court for an amendment of the amount recovered in the action and set forth in the judgment, because of her failure to include in her complaint the additional sum now made the basis for the action here. The trial court granted the motion and upon appeal the trial court was reversed. Jacobson v. Mutual Benefit Health and Accident Ass'n, 71 N.D. 542, 3 N.W.2d 239.

The plaintiff thereupon commenced this action and in her complaint alleged, among other things:

"5. That on the 17th day of October, 1938, the Plaintiff did commence an action *** for a recovery of Part A of said policy, to-wit: the sum of $2000.00 for loss of life; *** recovered a judgment for said sum, which was duly paid by the Defendant, but in accepting payment and giving satisfaction of said judgment, the Plaintiff did in said written satisfaction reserve all rights of recovery under said policy of insurance upon Part B thereof; that this present action is for the recovery of the sum of $1800.00 under Part B of said policy; that at the time the Plaintiff brought said action under Part A only, under said policy, and at all times since both the Plaintiff and her attorney at the time of bringing the first action were ignorant of the facts in regard to the constituent elements of her causes of action, *** were ignorant of the true amounts or items of her claim, and *** at all times herein mentioned up until the judgment was satisfied were ignorant of the full extent of the wrong received and injuries done to her; that *** ignorance *** of what was omitted in her first cause of action herein mentioned, was due to a fraudulent concealment thereof by the Defendant; that such fraudulent concealment thereof by the Defendant consisted of the following facts among others:

"(a) The said insurance policy was so drafted and framed so as to make it appear to the ordinary reader thereof that the total amount that the beneficiary could recover for loss of life was $2000.00. This feature is incorporated under Part A of said policy; that Part B of said policy which provides an additional payment of $200.00 for each year's renewal of said policy, there shall be added the sum of $200.00 to the death benefit; that this feature of said policy, *** is so smoke-screened and camouflaged by the heading of Part B, so as to lead the ordinary reader to believe that Part B did not modify Part A.

"(b) That *** from the beginning of the litigation to the end thereof, the Defendant well knew that the Plaintiff if entitled to anything, was entitled to recover for nine premiums paid after the first year, and well knew that if she was entitled to recover $3800.00 instead of $2000.00 but notwithstanding that fact, the said Defendant fraudulently remained silent and never intimated to either the District Court or the Supreme Court of said provision of said policy, nor did the Defendant ever intimate to the Plaintiff or her attorney the existence of Part B in said policy; that the Defendant well knew that the Plaintiff's elimination of said Part B in said other action was due to ignorance of the existence of Part B, and that same was omitted from said other action by reason of the fraudulent concealment and silence of the Defendant insurance company; that the Defendant's attorney never knew from the beginning of the action until the judgment was satisfied of the existence of Part B in said policy; that the Defendant fraudulently concealed the matter from its attorney; that in so far as the attorney for the Defendant and the attorney for the Plaintiff is concerned there existed a mutual mistake as to the existence of Part B of said policy; that said Part A and Part B are two separate promises; that both the Plaintiff and her attorney at all times used due diligence to ascertain the amount she could recover under said policy; that by reason of the fraudulent character and frame-up of the policy, both the Plaintiff and her attorney were mislead as to the true amount she was entitled to recover under said policy, all of which was due to the fraudulent conduct and action of the Defendant, as aforementioned."

The policy is attached to and made a part of the complaint.

The defendant demurred on the ground: "That the facts alleged in said complaint are insufficient to constitute a cause of action against this defendant." The court sustained the demurrer and the plaintiff appeals.

Under the demurrer two propositions were advanced: "That the plaintiff is barred by contractual limitation on the time for filing suit" and "that plaintiff is barred by a former judgment," or, as appellant states it:

"1. That Plaintiff's claim is barred by the limitation provision in the policy, as to time of bringing action.

"2. That the matter involved in this action has been adjudicated in a prior action."

The first page of the policy sets forth, in 24 point Italic type, one quarter of an inch high, the amount of monthly benefits and of death benefit and the amount of maximum monthly death benefit.

"Monthly Benefits .......... $100.00

"Maximum Monthly Benefits .. $200.00

Death Benefit ............... $2,000

Maximum Death Benefit ....... $4,000

Immediately following, it sets forth in 10 point black face type:

"Accident Indemnities"

"Specific Losses"

"Part A.

"If the insured shall, through accidental means, sustain bodily injuries-and result in any of the following specific losses-the Association will pay:

"For Loss of Life.......... $2,000.00

"..........

"..........

"..........

"Part B. Annual Increase Two Hundred Dollars Per Year."

(1/8 inch high, black face)

"After the first year's premium has been paid, each year's renewal of this policy shall add Two Hundred Dollars to the death benefit until the same amounts to Four Thousand ($4,000.00) Dollars."

"Part B" is written immediately after "Part A," with the same prominence, and in 10 point light face type. Thus, the amount recoverable for loss of life is stated in "Part A," and "Part B" immediately thereafter shows the amount to be added to death benefits for each year's renewal of the policy until the total amount reaches $4,000.

In the action set forth in 69 N.D. 632,...