Collier v. Union Indemnity Co. , 38 N.M. 271 ( 1934 )

I concur in the result; also in the reasoning which supports conclusions reached in the disposition of all points save the last one. It involves the question whether the complaint sufficiently negatives exceptions from liability. The contract is so similar to that involved in Lunt v. AEtna Life Ins. Co.,253 Mass. 610, 149 N.E. 660, that I am unable to escape the force of that opinion in its conclusion that the limitation on liability, occurring as it does by way of exclusion in the granting clause of the policy, is an exception and that the complaint must by appropriate allegations negative the loss as coming within the exceptions.

But I think the complaint sufficiently fulfills this requirement as against the rather general language employed by the demurrer to point out the defect. The complaint alleges that Margaret Johnson "was such a person as is described thereby (in the policy) for accidental injuries to whom the defendant bound and obligated itself to indemnify the plaintiff in the sum of $5,000.00."

If, in fact, the injury to Margaret Johnson were caused by an illegally employed minor or by a contract convict, then she is not within the class of persons described in the policy "for accidental injuries to whom the defendant bound and obligated itself to indemnify the plaintiff in the sum of $5,000.00." So, while recognizing Lunt v. AEtna Life Ins. Co., supra, as calling for a present application of the rule of pleading there made decisive, I consider the complaint before us, for the reasons stated, as fairly meeting the requirements of the rule.