Whitlaw v. The Illinois Life Insurance Company

• Citation: 122 P. 1039,86 Kan. 826
• Decision Date: 06 April 1912
• Docket Number: 17,383
• Parties: MARY M. WHITLAW, Appellant, v. THE ILLINOIS LIFE INSURANCE COMPANY, Appellee
• Court: United States State Supreme Court of Kansas

122 P. 1039

86 Kan. 826

MARY M. WHITLAW, Appellant, v. THE ILLINOIS LIFE INSURANCE COMPANY, Appellee

No. 17,383

Supreme Court of Kansas

April 6, 1912

Decided January, 1912.

Appeal from Wyandotte court of common Pleas.

Order striking out reply reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--Motion to Strike Out--When Appealable. An order overruling a motion to strike out parts of an answer which does not involve the merits nor determine the action is not appealable, and can only be reviewed in this court after final judgment in the action.

2. PLEADINGS Same. An order striking out parts of a reply containing new matter pleaded in defense of new matter contained in the answer, and which involves the merits of the action, and precludes the defense so pleaded, is appealable, and may be reviewed in this court before judgment in the action.

E. C. Little, for the appellant; T. A. Pollock, of counsel.

Harkless, Crysler & Histed, and Henry W. Price, for the appellee.

OPINION

BENSON, J.:

The proceedings to be reviewed in this case relate to the pleadings. The action was to recover upon a contract for reinsurance attached to a life insurance policy. The petition contained a copy of the policy, the certificate of reinsurance, a letter signed by the president and secretary of the appellee, the reinsuring company, and a proposition marked "D" made to and accepted by the company which issued the policy. The amended answer contained first, a general denial; second, a denial that the documents set out in the petition constituted a contract; and third, a defense or defenses based upon a contract between the two insurance companies, approved by a federal circuit court in an action brought by a policyholder of the issuing company, in which both companies were parties. The policy provided:

"The said Association further agrees to continue this Insurance without medical reexamination for other ensuing consecutive terms, of twelve months each, during the life of the insured, upon payment on or before the 28th day of February in each successive year of the annual premium. . . . The annual premium on this policy may, by the consent of the Association, be paid in semi-annual or quarterly equivalent, . . . but failure to pay when due any such semi-annual or quarterly equivalent will then terminate this policy, except as hereinafter set forth.

"In case of claim by death, any unpaid portion of the annual premium or other indebtedness of the insured to the Association will be deducted from the sum insured."

The contract between the insuring and the reinsuring companies contains provisions quoted in the answer which the appellee alleges change the above provisions of policies of the class sued upon so that the failure to make the quarterly payment of a premium when due works a forfeiture ipso facto.

Upon this statement it appears that the principal issue to be tried is simple. Briefly stated it is whether the terms of the policy or of the contract between the two companies shall govern, conceding that such terms are in conflict. In an endeavor to present this issue a voluminous answer, amended answer, and a lengthy reply have been filed, and the case is presented here upon forty-eight assignments of error, based upon rulings on demurrers and motions. The rulings upon various motions directed against the answer and amended answer will not now be considered, a reply thereto having been filed, and the orders appealed from not involving the merits nor determining the action. (Civ. Code, §§ 565, subdiv. 3, 566; Stebbins v. Laird, 10 Kan. 229; A. T. & S. F. Rld. Co. v. Brown, Adm'r, 26 Kan. 443; Ludes v. Hood, Bonbright & Co., 29 Kan. 49.) Such orders may be reviewed after final judgment. (Hulme v. Diffenbacher, 53 Kan. 181, 36 P. 60.)

The amended answer contained the following:

"This defendant expressly denies that it executed and delivered to the plaintiff the certain writing attached to the said plaintiff's petition marked exhibit 'D'.

"This defendant expressly denies that the said Exhibits 'B', 'C' and 'D' constituted a reinsurance contract made by the said defendant to and with Francis M. Whitlaw or the plaintiff herein."

This defense was verified thus:

"That the Second Defense of the foregoing answer is true, and that the defendant denies the execution and delivery to the plaintiff of the certain writing attached to said petition marked Exhibit 'D.'"

A demurrer was filed to this paragraph on the ground that it did not state facts constituting a defense. The denial contained in this defense is not of the execution of the paper alone, but of its execution and delivery to the plaintiff. Delivery to the plaintiff who is the beneficiary only was not necessary; it should have been, and it appears that it was, delivered to the policyholder. It is true that the petition contained a general averment, probably made through inadvertence, that all these papers were delivered to the plaintiff, but this clause is immediately followed by the qualifying statement that the proposition exhibit "D," was issued to the trustees and policyholders, and that the other papers were sent to Francis M. Whitlaw (the insured) and the plaintiff. The concluding part of this defense is only the statement of a legal...