Tolbert v. Caledonian Insurance , 101 Ga. 741 ( 1897 )

Little, J.

The court below treated the petition as a suit on a policy of fire-insurance, and sustained a demurrer filed by the defendant, on the grounds, that by the terms of the contract attached to the petition no action could be maintained unless commenced within twelve months next after the fire occurred, and because the petition set out no cause of action. The plaintiff in error insists that the'court below misunderstood the nature of the case presented in the petition, and avers it to be an action seeking to recover damages from the defendant for fraud perpetrated upon the plaintiff in issuing to her a policy of fire-insurance and receiving premium therefor, when the policy was absolutely void in the hands of the plaintiff as an indemnity for a loss by fire. Without this assurance on the part of the plaintiff we would probably have put the same construction on the petition. Taking the construction, however, placed upon it by the plaintiff, we are to enquire whether the demurrer filed is good on the ground that it fails to set forth a cause of action, as ruled by the court below. The charge against the defendant is, that it issued to the plaintiff a policy of fire-insurance which contained certain limitations and conditions that in fact rendered the same void to accomplish the purpose of insurance as to her property; that she is uneducated and illiterate; that she was ignorant of the requirements contained in the policy of insurance, was under a belief that, where property was owned by a person and the premium paid, a policy would protect the owner during its existence against loss to the amount stipulated; that it was delivered to her without any information as to its contents; that it was not read to her and none of the conditions or stipulations were communicated; that since her loss by fire and the refusal of the defendant to pay, she first learned what were the conditions of the policy; and that the attempt of the defendant to shield itself under the conditions and limitations of the policy operates as an injustice to her and gives the defendant an unconscientious advantage over her; that she would readily have communicated any and all facts concerning the risk had she been interrogated in reference to the same, etc.

It seems that the naked proposition for which the plaintiff contends is, that having paid the premium for a policy insuring her house, it is a fraud on her, having sustained a loss, not to pay it, because certain conditions are incorporated in her contract of which she was ignorant. It is not insisted, as we understand, that the defendants were the cause of her belief that there were no conditions in the contract, or that they or their agents misrepresented such conditions or prevented her from ascertaining the same, but -that they did not communicate the same to her. We confess to an inability to determine that the issuance of this policy was fraudulent on account of certain conditions, without some information at least as to what were those conditions. No particular stipulation or condition is attacked for fraud, and none set out specifically which would under the contract void it as to her. In what does the fraud consist? The plaintiff replies that certain conditions were placed in the contract which rendered it void, of which she had no knowledge. How did they render it void? For aught we know (except for the general allegation that certain conditions rendered it so) the policy was a good one, and it would be held so until specific allegations of particular conditions therein which render it nugatory are distinctly made, and the fact of the invalidity of the contract by reason of the condition would be one of the matters to be adjudicated precedent to the enquiry as to the fraud; for if a stipulation not affecting her right to recover nor voiding the contract was inserted fraudulently, it affords no ground of complaint. The law deals only with matters of substance ; and before the enquiry could progress, it must at least be shown that the contract as she understood it had been so substantially affected as to jeopardize or destroy her rights. She could not recover at all or anywhere on the general allegation of fraud which deprived her of her rights, but only by setting out the fraud, and showing how it damaged her.

“In pleading fraud and duress, specific facts must be stated with due certainty; and where the execution of a deed is the result, the facts must be such as will avoid the deed.” Carswell v. Hartridge, 55 Ga. 412. The facts constituting the fraud must be stated. Bliss, Code Pleading, § 211. The use of epithets however bountifully multiplied wdll not supply the place of facts. 72 Ind. 137. Pleadings must state facts and not legal conclusions, and fraud is never sufficiently pleaded except by the statements of the facts upon which the charge is based. 43 Iowa, 619.

Facts constituting an alleged fraud should be full and explicit — plea should state facts, not conclusions. Napier v. Bank, 68 Ga. 637. The complainant should state specific facts, that the court may be enabled to judge whether the same constitute fraud. Story’s Eq. Pl. 211.

The principle of these authorities we consider applicable here; that is, that specific acts of fraud must be stated, and that general charges are not sufficient; and it will control the case against the plaintiff in error. The general charge is, that the insertion of conditions which voided the policy and worked to her injury constituted the fraud. Specific conditions are required to show the fraud which works a forfeiture of the policy. We have examined with care the views of the learned counsel for the plaintiff in error, submitted in his brief, but have failed to arrive at a conclusion in harmony with his views.

If the petition seeks a recovery on- the policy ¿ it bears grounds of successful defense on its face; it is barred by its terms. If it seeks alone to recover on the ground of the acts of the defendant by inserting conditions in the contract unknown to her, it fails to set out specifically the conditions which work her injury and establish the fraud. In either case the demurrer was properly sustained.

Judgment affirmed.

All the Justices concurring.