Metro. Life Ins. Co v. Rutherford

• Decision Date: 07 April 1898
• Citation: 95 Va. 773,30 S.E. 383
• Parties: METROPOLITAN LIFE INS. CO. v. RUTHERFORD.
• Court: Virginia Supreme Court

30 S.E. 383

95 Va. 773

METROPOLITAN LIFE INS. CO.

v.RUTHERFORD.

Supreme Court of Appeals of Virginia.

April 7, 1898.

Life Insurance—Action on Policy—Pleading —Sufficiency—Appeal—Review—Misrepresentations as to Health—Effect.

1. No recovery can be had upon a policy of insurance, where, by its terms, the money is only payable on the performance of certain acts by the insured and the existence of certain facts, without alleging in the declaration the performance of those acts and the existence of those facts.

2. When a demurrer is sustained to one of the counts in a declaration, and issue is taken upon the remaining counts, upon which a trial is had and verdict rendered, a writ of error to the judgment will not bring up the action of the court in sustaining the demurrer, nor can such count be referred to in order to sustain the judgment complained of.

3. Where the application signed by deceased for life insurance contained inquiries, the replies to which were warranted to be true, as to whether he ever had disease of the kidneys, disease of the urinary organs, jaundice, and other diseases, all of which were answered in the negative except as to disease of the kidneys and jaundice, the insurer is released from liability if the deceased ever had a disease of the urinary organs, although such disease was caused by disease of the kidneys.

4. Where deceased in his application for life insurance stated he was in sound health, the fact that he was not in sound health when insured, except in so far as his health was impaired by diseases which he stated in his application he had had, relieves the insurer from liability.

Error to law and equity court of city of Richmond.

Action by Mrs. Mary Rutherford against the Metropolitan Life Insurance Company. From a judgment In favor of plaintiff, defendant brings error. Reversed.

Leake & Carter and B. Rand. Wellford, for plaintiff in error.

P. A. L. Smith and R. W. Ivy, for defendant in error.

BUCHANAN, J. Mrs. Mary Rutherford in-stituted an action of debt against the Met-ropolitan Life Insurance Company to recover the sum of $1,012.94. The declaration con-tained two special counts, and the common counts for money lent, money paid, and money had and received, and upon an account stated.

The defendant company demurred to the declaration, and to each count thereof, and pleaded nil debet. The demurrer was sustained as to the special counts and overruled as to the common counts. Upon the trial of the cause upon the issue joined upon the common counts, the plaintiff offered to read to the jury two policies of insurance issued by the defendant upon the life of Edward Rutherford, each for $500. To this evidence the defendant objected upon the ground that the policies, which contained conditions and provisos, were not admissible in evidence upon the common counts; but that, in order to introduce them, it was necessary to declare upon them specially, and set out in the declaration fully the terms of each contract, and the performance of its conditions on the part of the plaintiff and those she claimed under.

This assignment of error raises the question whether a recovery can be had upon a policy or contract of insurance, where, by the terms of the policy, the money is only payable on the performance of certain acts by the insured and the existence of certain facts, without alleging in the declaration the performance of those acts and the existence of those facts.

Counsel for plaintiff have cited us to no authority, nor have we in our research been able to find any case, in which it has been held that a recovery can be had upon such a policy of insurance upon a declaration containing only the common counts.

The general rule is that, where an act is to be done by one party as a condition precedent to his right to claim performance upon the part of the other, he cannot claim such performance without averring the doing of such act or without giving some excuse for its nonperformance.

Mr. Chitty says that "when the considera tion of the defendant's contract was executory, or his performance was to depend upon some act to be done or forborne by the plaintiff, or In some other event, the plaintiff must aver the fulfillment of such condition precedent, whether it were in the affirmative or negative, or to be performed or observed by him or by the defendant, or by any other person, or must show some excuse for the nonperformance." 1 Chit. P1. 329.

Mr. Robinson says, in discussing this question, that "all the cases agree that where words make such condition [that is, a condition precedent] the declaration must aver performance thereof." 4 Rob. Prac. pp. 3, 492, et seq.; 3 Rob. Prac. pp. 571, 581; 1 Bart. Law. Prac. 317.

The rule, as stated in the text-books, is fully sustained, we think, by the cases. Railroad Co. v. McCulloch, 12 Grat. 595, 597, and cases cited; Roach v. Dickenson, 9 Grat. 154; Brockenbrough v. Ward, 4 Rand. 352, 354, 355.

If money due upon such policies of insurance could be recovered upon the common counts, the act of assembly of February 9, 1872, entitled "An act to simplify declarations in actions against insurance companies" (Acts 1871-72, pp. 57, 58), and now found in substance in the Code as section 3251, was wholly unnecessary

That section of the Code provides "that in an action on a policy of insurance, if the plaintiff file the policy or sworn copy thereof with his declaration, it shall not be necessary, in respect to the condition and provisos...