Riley v. Royal Arcanum

Beck, J.

(After stating the foregoing facts.)

1. Considering all the allegations in this petition, we are of the opinion that it was a suit upon an insurance policy. It sets forth the names of the beneficiaries, the amount due under the policy, alleges that the instrument is in the hands of the defendants, and for all the terms and provisions of the policy refers to the instrument itself. It also alleges the death of the insured, the submission of proof of the death, and that the sum for which the policy .was issued became due. But we do not think the petition should have been dismissed upon general demurrer upon a failure to comply with the provisions of the Civil Code, § 5541, requiring that a copy of the written contract or other writing sued upon shall be attached to the suit. Such an objection to the sufficiency of the petition should have been raised by special demurrer, and could not be effectively raised by a motion to dismiss in the nature of a general demurrer at the trial term.

Nor should the general demurrer have been sustained on the ground that there was a misjoinder of parties or causes of action. An objection of this character should likewise be raised by special demurrer at the appearance term.

2. The mere fact that the petitioner refers to the payment of assessments and dues by himself and the other party alleged to be a beneficiary, and the allegation that the policy was payable to the beneficiaries to be named by the insured, when considered in connection with the allegation that after the agreement between himself and his father and his brother, to the effect that if the plaintiff and hi§ brother would pay the dues and assessments they should be the beneficiaries in the policy, the policy was issued so as to read payable to <7. L. Eiley (the plaintiff) and E. E. Eiley (one of.the defendants), are not sufficient, upon general demurrer, to authorize the court to treat the policy as one other than an ordinary life-insurance policy, and to hold that it was merely a benefit certificate in a fraternal beneficiary society, wherein the beneficiary could be changed at will by the insured. The instrument sued upon is alleged to be a policy of insurance; and in the absence of allegations to the contrary, upon general demurrer it will be considered an ordinary policy of insurance, in which the beneficiaries named had a vested interest, especially in view of the fact that they had paid the premiums thereon. If it had been shown' by the petition that what is called a policy of insurance was a certificate of membership in a fraternal beneficiary society, a different question would have been raised.

3. Inasmuch as the judgment of the court below is reversed upon another assignment of error, it is unnecessary to pass upon the question raised by the exception to a refusal of the court to give counsel time to prepare an amendment to the declaration.

Judgment reversed.

All the Justices concur.