Bannister v. Michigan Mutual Life Insurance

Williams, J.:

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the. event.'

The action is upon a policy insuring the life of one ¡Newkirk, the plaintiff being the beneficiary therein. The complaint was dismissed. upon the pleadings, and the only question is whether upon the facts alleged in the complaint, aided by any proper use of the allegations in the answer, it appeared conclusively that the' plaintiff could not maintain the action. The defense' held sufficient to defeat the plaintiff’s recovery was,, apparently, the one-year limitation, founded upon the agreement of the parties as expressed in the policy.

The dismissal could not - be based upon the complaint alone, because such limitation was a matter of defense. • The defendant ■might raise the question bv its answer or, by failing to so raise it, waive the same: It was proper, therefore, for the court to. look into the answer to see that the question was properly raised. - This was,, however, the only proper use that Could be made of the answer in determining the motion for dismissal. The matters of fact alleged in the answer were not to be regarded as admitted by the plaintiff, for the purposes of the' motion. In order to establish the same, evidence would need to.be given. The error in the decision of the court was assuming as true the allegation in the answer that there had been a One-year limitation fixed by the policy. Thé allegation was that upon the back of the policy was the clause or condition following: “ No suit, arising out of this contract shall be begun more than one year from the death of the. insured.” There was no . allegation relating to this limitation in the complaint, and the policy Was not annexed thereto ói made a part thereof. The alie-' gation in the answer did not establish the fact. If the defendant gave any proof to support the allegation, the plaintiff might controvert it, and make the question one for a jury." The Court could Hot assume it to be true, in the absence of proof, and no proof was given. .'■■■■„'

It appeared that the insured died July 23, 1903, and that this ■ action was not commenced until October 4, 1904, more than a year after the death. These allegations were found in the complaint. The judgment must, however, be reversed because it did not appear by the complaint that any one-year limitation had been agreed upon by the parties in the policy.

Another question is raised by the plaintiff, which we should con-, sider here, as it may be again presented upon the new trial. The complaint alleged that an action was first brought upon the policy December 3, 1903, in the County Court of Erie county; that on December 23, 1903, the defendant appeared specially in that action and objected to the jurisdiction of the County Court, on the ground that the defendant was a foreign corporation; and that thereafter, and on September 27, 1904, the plaintiff took an order in said County Court discontinuing that action, and soon after commenced the present action, as hereinbefore stated.

Section 405 of the Code of Civil Procedure provides: “ If an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representative, may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination.”

The plaintiff claims protection under this statute, on the ground that the discontinuance of the first action was not voluntary; that the County Court had jurisdiction of the subject-matter of the action, and would have had jurisdiction of the person of the defendant but for its objection thereto; that the plaintiff was compelled to discontinue the action by the objection interposed by the defendant. The objection to the jurisdiction of the County Court was made only five months after the death. The plaintiff knew then as well as she did nine months later that she could not maintain the action in County Court, but instead of then discontinuing her action and commencing one in Supreme Court, she waited until more than a year after the death, and then discontinued the first action and brought this one. Under these circumstances certainly it could not be held that the discontinuance was compelled, or Was otherwise than voluntary. The plaintiff would not, therefore', be .'entitled to any protection under the section of the Code referred to.

McLennan, P. J., concurred; Spring and Mash, JJ., concurred in first ground only, in memorandum by Spring, J,; Kruse, J., concurred in separate memorandum.