Sahlman v. Mutual &c. Ass'n , 53 S.C. 183 ( 1898 )

The opinion of the Court was delivered by

Mr. Justice Jones.

This appeal is from an order adjudging (1) that the complaint as amended substantially complied with a previous order requiring the complaint to be made more definite and certain, and (2) refusing defendant’s motion to require plaintiffs to elect whether they would rely upon the verbal agreement of insurance alleged in the third paragraph of the complaint or upon the receipt' for premium, also referred to in said paragraph. The third paragraph of the complaint is as follows: “III. That on or about the 9th day of March, 1896, or shortly thereafter, at Spartanburg, in said county and State, the defendant corporation, by its authorized agent, A. W. Markell, in consideration of the payment to it of $20 by John C. Sahlman, and of his agreeing to pay other instalments of the annual premium charged as same should fall due, agreed to insure, and did thereupon insure, the life of the said John C. Sahl-man, for the period of twelve months from said date, in the sum of $2,500, for the benefit of the wife and children of the said John C. Sahlman, share and share alike, namely: the plaintiffs, Mary E. Sahlman, John H. Sahlman, and Harry Eugene Sahlman; said agreement being verbal, and being as stated in this paragraph, and being evidenced in part by a receipt for $20 to the same effect then given by said agent, and which receipt, as plaintiffs are informed and believe, has since been lost, the terms of which said receipt cannot be more fully and accurately given than as stated herein.”

1 1. We agree with the Circuit Court, that the amended complaint substantially complied with his previous order requiring the original complaint to he made more definite and certain.

2 2. The refusal to require plaintiffs to elect was not erroneous. When two or more causes of action, which should be separately stated, are blended together, the defendant has the right either to have the complaint made more definite and certain by having said causes of action separately stated, or to move the Court to require plaintiff to elect on which cause of action he will proceed to trial. Ross v. Jones, 47 S. C., 214. The appellant has sought the first mentioned remedy, and the Circuit Court has correctly adjudged that plaintiff has amended the complaint as required. The third paragraph of the amended complaint does not blend two causes of action. It states but a single cause of action.

The judgment of the Circuit Court is affirmed.

Mr. Justice Gary concurs in result.