Doyle v. Phœnix Insurance
Before: Wallace
Synopsis
Allegation of Law in Pleading.—In an action to recover money alleged to be due on a contract, an allegation, that the sum sued for is now due, Is a mere conclusion of law.
Complaint on Policy of Insurance.—In an action on an insurance policy, by the terms of which the loss is to bo estimated, and paid sixty days after due notice and proof of the same made by the assured, an allegation in the complaint, that the plaintiff performed all the conditions on his part in the policy to be performed, and gave the defendant due notice and proof of the fire and loss, and demanded payment, does not show that sixty days had elapsed after proof and notice before bringing suit, and the complaint does not state a cause of action.
Policy ob Insurance.—When a policy of insurance provides that the loss shall be estimated when it accrues, and be paid sixty days after due notice and proof of the same made by the assured, the company is not bound to pay until sixty days after such notice and proof.
By the Court, Wallace, C. J.: The plaintiff brought this action upon three several policies of insurance by which the defendant had insured her against loss or damage by fire upon certain property of hers. The defendant not appearing, a default and final judgment for the plaintiff was entered below, and after an ineffectual effort made there to set aside the default and to obtain leave to defend the action, the defendant brings this appeal.
The complaint contains three counts, each of which sets forth in haec verba the policy, for a breach of which it professes to proceed, and the first point made is, that each' of [268]said counts is radically defective, and substantially insufficient to support the judgment by default which the plaintiff obtained, in that it does not appear that the sum for which judgment was rendered, or any part thereof, was due.
As the several counts. and policies sued upon are, mutatis mutandis, identical, it will only be necessary to particularly notice the first one.
By the terms of the policy it is provided as follows: “The amount of loss or damage to be estimated according to the actual cash value of property at the time of the loss, and to be paid sixty days after due notice and proof of the same made by the assured,” etc. It is objected, that it does not appear from the allegations of the complaint that when the action was commenced this period of sixty days had elapsed. In answer to this point the respondent relies upon the following averments in the complaint:
“ That the plaintiff duly performed all the conditions on her part, in the said policy of insurance, to be performed. That she gave to defendant due notice and proof of the fire, and loss aforesaid, and demanded payment of the said sum of six hundred dollars; that no part of the same has been paid, and that the whole of said sum is now due, for which she demands judgment,” etc.
The allegation that the sum “is now due ” may be laid out of the case, inasmuch as that is a conclusion of law merely. ¡Mor does the averment that the plaintiff" duly performed all the conditions on her part, in the said policy of insurance to be performed, and that she had given due notice and proof of the loss, aid the complaint in this respect.
Under the terms of the policy, the doing of these things would not give her an immediate right of action against the defendant for the payment of the sum demanded, for the defendant was not bound to pay until the lapse of sixty days thereafter. In a complaint filed on the very next day after
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