New York Life Ins. Co. v. Holck

• Decision Date: 07 June 1915
• Docket Number: 7806.
• Citation: 151 P. 916,59 Colo. 416
• Court: Colorado Supreme Court
• Parties: NEW YORK LIFE INS. CO. v. HOLCK.

151 P. 916

59 Colo. 416

NEW YORK LIFE INS. CO. v. HOLCK.

No. 7806.

Supreme Court of Colorado

June 7, 1915

On Petition for Rehearing, October 4, 1915.

Error to District Court, City and County of Denver; Geo. W. Allen Judge.

Action by Norah D. Holck against the New York Life Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed. On rehearing opinion modified.

Charles W. Waterman and Caldwell Martin, both of Denver, and James H. McIntosh, of New York City, for plaintiff in error.

H. A Hicks, Horace N. Hawkins, and Charles Roach, all of Denver for defendant in error.

GABBERT C.J.

In February, 1894, the New York Life Insurance Company issued a policy on the life of one James Holck, payable on his death to his wife, Nora D. Holck. In May 1911, the beneficiary instituted an action against the insurance company to recover on this policy. Her right to recover was based upon the ground that the insured had disappeared, and had not been heard from for more than seven years prior to the commencement of her action. The complaint also alleged the various steps taken by plaintiff to ascertain and learn the whereabouts of the insured, and whether he was alive. The trial resulted in a verdict and judgment in favor of plaintiff, to review which the insurance company has brought the case here on error.

A general demurrer to the complaint was interposed, based upon the ground that it did not allege the death of the insured, which was overruled, and this is assigned as error. The theory of the complaint was that the insured was presumed to be dead, because he had disappeared and had been absent for more than seven years without tidings, and that diligent search and inquiry had been made to ascertain his whereabouts; in other words, plaintiff did not ground her action upon knowledge of the actual death of the insured, but upon allegations of fact, from which it would be presumed he was dead. It is not claimed that the averments in the complaint are not sufficient to raise this presumption, but its sufficiency is attacked solely upon the ground that it does not specifically aver the death of the insured. When the facts stated in a pleading are such that the ultimate fact upon which the pleader relies can be fairly inferred, it is good as against a general demurrer (Downey v. Colorado Fuel & Iron Co., 48 Colo. 27, 108 P. 972); or, to otherwise state the proposition, when the law presumes a fact from other facts stated, or that fact is necessarily implied from the statements made in a pleading, it is equivalent to an averment of such fact. The object of a complaint is to inform the defendant of the precise ground upon which the plaintiff predicates his cause of action, and which the defendant will be called upon to meet in order to defend against it; and hence in an action upon a life insurance policy, based upon the presumption of the death of the insured, the complaint is sufficient when from the facts alleged such presumption arises. Moffit v. Varden, 17 Fed. Cas. 561; Ruoff v. Greenpoint Savings Bank, 40 Misc. 549, 82 N.Y.S. 881; White v. Emigrant Industrial Savings Bank, 146 A.D. 591, 131 N.Y.S. 311; Modern Woodmen of America v. Gerdom, 72 Kan. 391, 82 P. 1100, 2 L.R.A. (N. S.) 809, 7 Ann.Cas. 570, and again considered in 77 Kan. 401, 94 P. 788. Davie v. Briggs, 97 U.S. 628, 24 L.Ed. 1086. It is true that in none of these cases was the sufficiency of the complaint raised or passed upon, but in each of them it seems to be assumed that the averments of fact which made it appear that death will be presumed is sufficient to state a cause of action, when based upon such presumption. This necessarily follows, because in such cases 'actual' death cannot be alleged, and in these circumstances there is no other method by which the pleader can allege the death of the insured than by apt averments of facts from which it will appear his death is presumed.

Following the averments respecting the disappearance of the insured, and his absence without tidings, it was stated:

'And by reason of said disappearance for said period of more than eight years, the said James Holck became and was and is legally dead, and became and was and has been legally dead.'

The defendant moved to strike this portion of the complaint upon the ground that it was a mere conclusion, insufficient to constitute an allegation of fact, which motion was denied. It is the general rule that a portion of a pleading which is nothing more than a legal conclusion should be stricken on motion, but this does not apply to a conclusion based upon averments preceding, when from such averments such conclusion can be deduced. In any event, if the motion was well taken, the refusal to sustain it did not prejudice the defendant. The issue tendered by the plaintiff was the allegation of facts from which the death of the insured could be presumed, and the portion above quoted was surplusage, which in no sense strengthened the complaint or tendered an issue, as the right of plaintiff to recover depended entirely upon establishing facts from which the death of the insured would be presumed, and not upon any legal conclusion pleaded as deducible therefrom.

Counsel for the defendant company contend that the presumption of death, arising from seven years' absence without tidings, merely takes the place of evidence by operation of law, which operates to determine on which party rests the duty of proceeding with the evidence, and cannot be invoked to aid in the construction of a pleading. We are dealing with a pleading, the sufficiency of which is challenged for want of the averment of necessary facts, and not with the burden of proof. In re Benjamin, 77 Misc. 434, 137 N.Y.S. 758, cited by counsel, does not support their proposition. In that case it was said:

'The so-called presumption of death is a mere rule concerning burden of proof.'

This was not stated in considering a complaint, but in calling attention to the proposition that the testimony intended to establish such presumption might not be sufficient 'to shift the onus to those asserting continued life.' All that was decided in that case is stated in the syllabus, which reads:

'The presumption of death after seven years' absence may be rebutted by any inherent circumstance or expressly, and is applicable only when it is an irresistible inference from the facts found.'

From which it appears that the case determined a question of evidence, and not of pleading. Neither is Connecticut Mutual Life Insurance Co. v. King, 47 Ind.App. 587, 93 N.E. 1046, in point on the question of the sufficiency of the complaint. The action was by the beneficiary of a life insurance policy, based upon the ground that the insured was presumed to be dead. The controlling question related to the law governing the presumption of death. The court said:

'The suit being upon a contract of insurance on the life of Presley T. Buckner, there can be no recovery, unless it is charged in the complaint and shown by the proof that Buckner is dead. Nowhere in the complaint is there a direct allegation of death. After setting out the fact of the disappearance of Buckner, and the further fact that he had not been seen or heard of since February, 1867, it is then averred: 'That in February, 1867, by virtue of the premises and in presumption of law, the said Presley T. Buckner died.''

The court then said:

'The averment of presumptive death is insufficient; facts, and not presumptions, conclusions, or the evidence of facts, must be pleaded.'

Thus making it clear, when we refer back to what the complaint stated with respect to its averments upon which the presumption of the death of the insured was predicated, that it was insufficient to raise such presumption, and it was not held that the failure to directly allege the death of the insured constituted the insufficiency of the complaint, but ruled that, in the absence of such an allegation, in connection with a failure to aver sufficient facts from which the death of the insured could be presumed, the complaint was insufficient.

In Bradley v. Modern Woodmen of America, 146 Mo.App. 428, 124 S.W. 69, cited by counsel for the insurance company in support of their contention that the complaint is not sufficient, the action was to recover on a policy of insurance, based on the presumption of the death of the insured from his absence. The policy involved lapsed shortly after the disappearance of the insured, and it was held that the petition was insufficient because it failed to aver the death of the insured prior to the lapse of the policy. This holding was undoubtedly correct, for the reason, as stated in substance in the opinion, that the presumption of death arising from facts properly pleaded raises no presumption as to the time of death, but this is not applicable to any question involved in the case at bar.

At the conclusion of the evidence the defendant moved for a directed verdict based upon several grounds, which in effect were that the testimony was insufficient to make a case in favor of plaintiff. This motion was overruled. Whether or not the ruling on the motion for a directed verdict was correct must therefore be tested by a consideration and an analysis of the testimony.

Holck was a blacksmith, and had been engaged in that business at Black Hawk and Central City for several years. On the evening of February 22, 1902, he came home under the influence of liquor, and he and his wife had a disagreement about the payment of the premium then due on the policy and his drinking. He denied that he had the money to pay the premium said he had a month's grace, and intended to sell the policy. They retired as usual, but evidently the quarrel was serious, as he left the next morning...