delivered the opinion of the court, November 20th 1882.
By demurring generally to the declaration, the defendant below admitted the truth of all matters of fact sufficiently pleaded therein ; and hence.it follows.that if a good cause of action is properly presented in either count of the declaration, there was no error in overruling, the demurrer and entering judgment for the plaintiff. Whatever doubt may exist as to *283the sufficiency of the first count, the second, though somewhat informal, is substantially good, and supports the judgment.
The first count is on the contract of. insurance, as evidenced by the policy of which profert.is therein made. We are not prepared to say that it, also, does not disclose a good cause ’of action. The agreement of the company, as expressed in the policy, is to pay “ upon receipt of proofs, satisfactory to the company, of the death of the life insured,” the sum of money stipulated in the schedule, under the words “Amount of -insurance.” Turning to the printed schedule, which forms part of the. policy, we find $150, written in plain characters under the words above mentioned. This is evidently “the sum of money stipulated” to be paid in the event of death, and satisfactory proof thereof; but, underneath the figures, is printed the following, viz: “ one-third only of the above sum payable if death occur after three calendar months and within six calendar months from date; two-thirds only if death occur after six calendar months and within one year; and the full amount only if death occur after one year.”
In view of this limitation as to the amount payable in certain contingencies, it is contended that the company has not obligated itself to pay anything in the event of death within three months from date of the policy; and, inasmuch as it is averred in the first count that the insured died within that time, it discloses no cause of action, and is therefore bad. If the provision above quoted was designed to convey the meaning thus contended for, it is badly expressed and calculated to mislead. Three contingencies appear to be therein provided -for: 1st, death of. the insured during the fourth, fifth and sixth calendar months, in which event, “ one-third only ” of the. stipulated amount shall be paid: 2d, death within the seventh to twelfth month inclusive., in which event “two-thirds only” shall be paid; od, death after one year from date of policy,- in which event “ the full amount only ” shall be paid. It contains no express provision for the contingency of death within the first three months;, and no unnecessary implication or liberal construction should be resorted to for the purpose of relieving the company from the payment of the sum specifically mentioned in the policy. Construing it, as should be done, most strongly against the insurer, it is by no means clear that the language used by the company exempts it from all liability in the event of death within the first three months. Its general undertaking, as we have seen, is to pay $150, upon receiving satisfactory proof of death. If it was intended that no liability whatever should be incurred, unless the insured survived the first three months, it should have been expressed in language not calculated to mislead, or entrap the ignorant and unwary.
*284In Bauman v. The Metropolitan Life Ins. Co., 8 Ins. "World 335, cited on argument by the plaintiff in error,'the phraseology of the policy was entirely different. It provided that if the party insured died within three calendar months no loss should be payable. If such language had been used in the policy before us, there could be no question as to the insufficiency of the first count. But, whether that count be considered good or bad, the second, as has already been observed, is sufficient, in form as well as substance, to sustain the judgment of the court below. In the contemplated assault on the first count the nature of the second appears to have been overlooked.
Judgment affirmed.
Gordon, Trunkey and Green, JJ., dissented.