Borger v. Connecticut Fire Insurance

RICHARDS, J.

This is an action brought to recover the sum of one thousand dollars with interest, alleged to be due

[697]

upon a fire insurance pplicy as the result of the destruction by fire of the premises insured. A copy of the policy was attached to and expressly made a part of the complaint. There was a general demurrer, which was overruled. Thereupon an answer was filed, admitting the issuance of the policy but denying liability thereon upon numerous alleged grounds, and also denying that the loss, if any, was due or payable or unpaid, according to the terms of the policy, at the time of the commencement of the action. Upon the trial of the cause judgment was rendered and entered in favor of the plaintiff for the sum of $801.98 with interest and costs. A motion for a new trial was denied, and from such judgment and order denying a new trial the defendant appeals.

The first point made by the appellant is that the general demurrer should have been sustained. We think the point is well taken. It is a'cardinal rule of pleading that a complaint must show upon its face an existing and ripened cause of action. The complaint in this case, after setting forth the facts regarding the issuance of the policy covering the property, and its transfer by several assignments from the original parties insured to the plaintiff with the assent of the insurer, and after averring the occurrence of the fire and the destruction of the property at some unspecified time during the year 1912, proceeds to allege “that on the........day of May, 1912, plaintiff furnished the defendant with proof of his said loss and interest, and otherwise performed all the conditions of said policy on his part; that said defendant has not paid said loss or any part thereof, and that the same is long since due, owing and unpaid according to the terms of said policy of insurance.’’ Then follows the prayer.

The difficulty with the plaintiff’s pleading arises out of the fact that while he has made the policy in question a part of his complaint as an exhibit and by reference, he has not alleged the things which the policy requires to have been done subsequent to the presentation of his proof of loss, nor has he averred any facts with respect to the passage of the time which the policy requires must have elapsed before the loss became payable and his cause of action arose. The policy provides that after the insured has furnished the insurer with the proofs of his loss, the insurer must within twenty days after the receipt thereof notify the insured in writing of its