Price v. Mutual Reserve Life Insurance

Page, J., delivered the opinion tif the Court. The questions in this case arise upon demurrers to the several pleadings. The narr. contains thirteen counts, the first four being the ordinary money counts, the other nine are special counts. The fifth count alleges that the Mutual Reserve Fund Life Association,'now known as The Mutual Reserve Life Insurance Company, in December, 1882, insured the life of Elias C. Price, deceased, father of the appellant, for the benefit of the plaintiff, and that the said appellee failed to. carry out its contract with the said Elias; that the said Elias has since died and by his last will and testament the appellant is the sole legatee of his estate ; that the said insurance company failed to comply with its said contract of insurance, in that it did the things.and omitted to do the things mentioned in the narr as ⁶⁸⁵ particularly mentioned in the fifth to* the thirteenth counts inclusive.

To this narr, the appellee filed nineteen pleas, wherein he pleaded, by the first plea, limitations, by the second and third the general issue, by several pleas from the fourth to the eighteenth inclusive, special traverses, of the several breaches set out in the narr ; and by the nineteenth plea, “that with full knowledge of all the actings and doings of the defendant on the policy of insurance and without any concealment or misrepresentations on its part, the said Elias Price voluntarily elected to discontiue payment on the mortuary assessments and dues, levied and assessed by the defendant, and thereby voluntarily suffered the said policy to elapse, whereby all the rights and claims of the said Elias Price wholly ceased and determined according to the express terms of said policy; and that said Elias Price, with full knowledge of all the acts and doings of the said insurance company for more than four years fully acquiesced in and assented to all said doings and well knew that said policy had lapsed and become null and void, wherefore it is further alleged that the said policy was cancelled and terminated during the lifetime of the said Elias and was acquiesced in by the said life association. The appellant by his replication to the defendant’s first plea, set up to the plea of limitations as follows; that by the false and fraudulent conduct and deceit of the defendant, his right of action was not discovered until within a period of less than three years prior to the bringing of this suit; He joined issue upon all the other pleas except upon the nineteenth plea, to which he demurred.' To this replication, the defendant rejoined, setting up, to the plea of limitations, first, that the defendant was not guilty of fraudulent conduct and deceit in relation to the policy; and that the said Price with full knowledge of all the doings and acts of the said insurance company in reference to the said policy, had voluntarily refused to pay the assessment and had directed the company to cancel the policy. And further that said Elias lived for more than four years thereafter, and that the said Elias, as well as the appellant, did know, of said alleged causes of action, and that the ⁶⁸⁶ appellant could have discovered by the use of ordinary diligence the alleged causes of action, four years next preceding the institution of this suit. The appellant demurred to the second, third and fourth rejoinders; and joined issue as to the fifth, whereupon the Court sustained the demurrer as to the narr., overruled the rejoinders to the plea of limitations, and on the 19th of July, 1905, on motion of appellees rendered judgment in their favor, and from this the appellant has appealed.

Without further particularity in stating the voluminous pleadings in the case it is apparent that the real questions involved are, whether or not a legal cause of action is stated in the narr., and also whether the plea of limitations was properly pleaded, and if so whether the facts set out in the rejoinders thereto were legally effective to constitute a bar. Stripped of its verbiage the ground of the plaintiff’s right of recovery appears to be, that the appellant, the son and sole legatee of Elias C. Price, bases his right to sue, upon the facts that Elias in his life time entered into a contract with the appellee, and that the appellee failed to observe the obligations resting upon it by the terms of said contract in the several particulars specially set out in the narr., notwithstanding the fact that in the life time of Elias, the contract was by agreement between the said Elias and the company cancelled. The appellant claims this right to sue, not because, unde’r and by virtue of the contract itself he has any such right,