Price v. Mutual R Ins.. Co. , 107 Md. 374 ( 1908 )

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. MutualReserve 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 assumpsit, 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 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 inCook 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 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 properly 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 defendant.

It will be seen that issue was joined upon all the pleas, except the third, the plea of limitations and the twenty-third, which was a plea on the merits to certain counts of the declaration. The amended twenty-third plea is as follows:

"And for a further and final plea to the fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth and thirteenth counts of the amended declaration, it says that on or about the 1st day of April, 1898, the plaintiff's testator, with full knowledge of all the acts and doings of the defendant with reference to the making and collecting of assessments upon the policy of insurance in said counts mentioned and without any concealment or misrepresentation whatsoever made by the defendant to him, voluntarily elected to discontinue payment of the mortuary assessments and dues lawfully levied and assessed by the defendant upon said policy and thereby voluntarily suffered the said policy to lapse.

"And the defendant says that by said voluntary discontinuance on the part of the plaintiff's testator to pay said assessments all his rights and claims against the said Mutual Reserve Fund Life Association and against the defendant as the alleged successor of said Mutual Reserve Fund Life Association wholly ceased and determined, according to the express terms and conditions of said policy, and that all the obligations of said Mutual Reserve Fund Life Association and of this defendant as the alleged successor thereof wholly ceased and ended and the said policy in said counts mentioned became wholly null and void."

To the plaintiff's replication to these pleas, the defendant filed six rejoinders. The second in substance alleges that on April 1st, 1898, the plaintiff's testator voluntarily and with full knowledge of all the facts, refused to pay the assessment due on that day, and directed the defendant to cancel the policy; that by said direction the policy was cancelled; that the letter of March 1st, 1898, concludes with an order, "Please cancel my policy as requested at the time mentioned." They further aver that the alleged causes of action were discovered by the plaintiff more than three years before the suit, and the policy was cancelled as directed by mutual consent. To the rejoinders the plaintiff filed sur-rejoinders and to these, the defendant demurred. There was no error in the ruling of the Court upon the demurrers. In Price v. Mutual Reserve Co., supra, on the former appeal, this Court distinctly said: "These facts are conclusive against any claim under the policy;" and referred to the following cases, to sustain its conclusion. Mutual Life Ins.Co. v. Sears, 178 U.S. 345; Ryan v. Mutual Reserve Ins.Co., 96 Fed. Rep. 796; Mutual Life Ins. Co. v. Phinney,178 U.S. 327.

And it was further said, inasmuch as the plea of limitations as set out by the appellee's plea went to the declaration the Court committed no error in sustaining the demurrer to the declaration and the plea of limitations.

We have examined the voluminous pleadings set out in the record in this case, with considerable care, and find no error in the rulings of the Court below thereon.

We hold, therefore, that the plea of limitations was properly pleaded and the facts alleged in the defendant's twenty-third plea, going to the merits of the case, constitute a complete bar to the plaintiff's action set out in the declaration under the pleadings in the case. The defense of limitations having been properly sustained, the plaintiff's action herein would be defeated, apart from its other defenses. The plaintiff's testator, under the facts in this case, clearly elected to discontinue the payment of the assessments and dues levied upon his policy and voluntarily suffered it to lapse. On June 16th, 1902, he had ceased for more than four years, to be a policy holder of the defendant. Apart from this, he voluntarily directed the defendant to cancel the policy and this was actually done. These facts are admitted upon the face of the pleadings and by the correspondence between the parties, set out in the record.

There is nothing upon the pleadings to avoid or overcome the matters and facts, relied upon by the defendant to defeat the plaintiff's action, in this case.

The plaintiff not pleading over, the defendant was entitled to a judgment on the pleadings, and there being no reversible error, the judgment will be affirmed.

Judgment affirmed with costs.