Penrose v. Pacific Mut. Life Ins. Co. of California

• Decision Date: 19 November 1894
• Docket Number: 251.
• Citation: 66 F. 253
• Parties: PENROSE v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA.
• Court: U.S. District Court — District of Montana

66 F. 253

PENROSE v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA.

No. 251.

United States Circuit Court, D. Montana.

November 19, 1894

George Haldorn, for plaintiff.

Thos C. Bach, for defendant.

KNOWLES District Judge.

This is an action on what is termed an 'accident policy.' The complaint contained this allegation:

'That under the terms of said policy of insurance, defendant agreed that in case W. J. Penrose did, during the continuance of said policy, sustain such violent injuries which alone should cause his death within ninety days from the time of the happening of such accident, then the said defendant should pay to the plaintiff, if surviving, the sum of five thousand dollars; that the said W. J. Penrose did during the continuance of said policy sustain such violent injury, which caused his death within ninety days from the happening thereof; and that defendant had due notice and proof thereof, as required by the terms of said policy.'

Plaintiff made the policy of insurance an exhibit and part of the complaint.

In looking at the policy of insurance, I find therein, after stating the amount for which said W. J. Penrose was insured, this:

'The said sum to be paid to Mrs. E. A. Penrose, wife, if surviving (if dead, to the legal representatives of the insured), after due notice and satisfactory proof that the insured has, during the continuance of this policy, sustained such violent and accidental injuries as shall externally be visible upon his person, and which alone shall have caused his death within ninety days from the happening of such accident.'

Defendant demurred to the complaint, for the reason that the same did not state facts sufficient to constitute a cause of action. If the policy was as stated in the allegations of the complaint, I do not see but it states a cause of action. The trouble is, not that it does not state a cause of action, but that plaintiff in her complaint has not stated the contract of insurance correctly. It is not the same contract set forth in the exhibit.

Whether or not the plaintiff should have stated that under the terms of the policy of insurance defendant agreed that in case W J. Penrose did during the continuance of said policy sustain such violent and accidental injury, is a question that does not arise in such a demurrer as in presented in this case. It might arise on a plea of non est factum. Whether or not the plaintiff should have alleged that W. J. Penrose 'did sustain such violent and accidental injury' as occasioned his death, might arise under the demurrer if plaintiff had set forth the contract in the alleging part of the bill. As a rule, an exhibit is not considered as an allegation of the facts it contains. Fitch v. Cornell, 1 Sawy. 156, Fed. Cas. No. 4,834; Oh Chow v. Hallett, 2 Sawy. 259, Fed. Cas. No. 10,469. Under what is termed 'code pleading,' the facts constituting the cause of action should be stated. A contract may be stated according to its legal effect or in haec verba. In setting forth a contract in haec verba, the language of the contract is used in stating the same in the pleading. This view of code pleading is supported by Pom Rem. & Rem. Rights, Sec. 526...