Price v. Mutual Reserve Life Insurance

Briscoe, J., delivered the opinion of the Court. This appeal brings up for review a judgment in favor of the defendant for costs rendered on the 23rd of January, 1907, in the Superior Court of Baltimore City, on the defendant’s demurrer to the plaintiff’s declaration. The questions arise solely upon the pleadings. They are very voluminous, and some of them were settled on a former appeal in the case of Price v. Mutual Reserve Life Ins.

Company, 102 Md. 684 . The amended declaration contains thirteen counts, and to this declaration the defendant pleaded twenty-three pleas. Subsequently, it appears there were interposed in turn by the plaintiff and defendant demurrers, replications, rejoinders, surrejoinders, rebutters and sur-rebutters, and the pleadings resulting in five demurrers on the part of the defendant. The first four counts of the declaration are the common counts in asstimpsit, the next eight are for alleged breach of a contract of insurance and the. thirteenth count is as follows: “The defendant, by false and fraudulent representations made to the plaintiff’s testator, induced the said testator to accept a policy of insurance, No. 8000, issued by the defendant on the life of said testator; and said testator, from 1882 to 1898, inclusive, paid the defendant, for premiums and mortuary assessments, the sum of twenty-three hundred dollars ($2,300), which payments were made by the said testator to the defendant, on representations of the said defendant, which representations were false and fraudulent; and the said mortuary assessments during said period of time, viz., from 1882 to ³⁸¹ 1898, inclusive, were illegal and wrongfully made, and assessed on said policy No. 8000 by the defendant, and of which said fraud and wrong, the plaintiff’s testator was ignorant at the time of making said payments.

It is insisted on the part of the defendant that the whole declaration is fatally bad on general demurrer, because of the mis-joinder of twelve counts in assumpsit with one count, thirteenth, alleged to be in tort, towit, a count in deceit. There was no error in the' rulings of the Court below in sustaining the defendant’s demurrer to the plaintiff’s declaration in this respect. The thirteenth count charges as stated the fraudulent procurement of money from the plaintiff, the fraud consisting in certain representations made by the defendant to the plaintiff in relation to a certain policy of insurance and the premiums and mortuary assessments thereon. The clear issue upon this count'would be whether or not the defendant induced the plaintiff by fraud to accept a certain contract.

This issue, it is clear, cannot be united in one suit with other counts declaring upon the contract. The usual test and rule in such cases being can the same pleas be pleaded, and the same judgment rendered on all the counts. Williams v. Bramble, 2 Md. 313 . While the decisions elsewhere are somewhat conflicting, the adjudications in this State will be found to the effect that a count for a deceit cannot be joined with a count in assumpsit.

In Weaver v. Shriver, 79 Md. 529 , it is held, an action on contract and an action of deceit in procuring the contract cannot be joined. The Court there- said: In some jurisdictions this practice is permissible, notably in Massachusetts. Ch. J. Shaw in Cook v. Castner, 9 Cush. 277 , says, such a course in practice tends to do justice between the parties.

But no such practice prevails in this State. In Pearce v. Watkins, 68 Md. 534 , it is held, an action on alleged policies of insurance cannot be joined with an action of deceit for fraudulently procuring money by means of pretended policies of insurance. In Chamberlain v. Robertson, 7 Jones’ Law (N. C.) 12, the North Carolina Supreme Court held, that a count for deceit ³⁸² in the sale of goods, cannot be joined with one in assumpsit on a warranty of soundness. Mahurin v. Harding, 8 Foster (N. H.) 128; Fennemore v. U. S., 3 Dall. 357 .

There being a misjoiner of counts in this case the declaration was properl}' held to be bad on demurrer, and as the plaintiff failed to cure the defect by amendment, the judgment at the conclusion of the case was correctly entered against him. We come then to the principal question in the case presented by the final pleadings demurred to and that is, does the plaintiff show on the face of the pleadings such a case, as entitles him to recover against the