Weltin v. Union Marine Ins. — 37 N.Y. St. Rep. 595

Majority

p. 595

Edwin Weltin, App’lt, v. The Union Marine Ins. Co., Limited, Resp’t.

(Supreme Court, General Term, First Department,

Filed March 13, 1891.)

Headnote

Pleading—Insurance (marine).

Where a suit is brought to recover on a policy of insurance or certifl

p. 596

cates covered thereby, it is not sufficient to allege in the complaint that a policy was issued and a loss sustained, but it should be averred that the policy or certificates covered the precise loss which occurred and were still binding and in force when the loss occurred. In the absence of such allegations an averment that there was “ a loss on so much of the cargo damaged as aforesaid, which was covered by the certificates aforesaid ’’ is a mere unsupported conclusion.

Appeal from interlocutory judgment, sustaining demurrer to complaint

This action was brought on a contract of marine insurance made by the defendant with one Staenglen, to protect and cover the latter’s interest in a cargo of cotton to be shipped from Galveston, Texas, to Cronstadt, Russia.

The complaint simply alleged that defendant issued certificates covering and intending to cover the owner’s interest in said cotton; that they were issued under a certain policy and were intended to convey all the rights of the original policy holder; that upon arrival at Cronstadt the cargo was discharged by means of lighters, as was customary, and that one of the lighters took fire and so much of the cargo as was upon it was damaged. The complaint did not state the terms of either the certificates or policy.

DeL. Benner, for app’lt; Lewis Cass Ledyard, for resp’t.

The objections to be found with the complaint are that it is nowhere stated therein what risks were insured against nor whether the policy of insurance represented by the certificates was a true policy or a voyage policy.

What is required in a pleading is a brief statement of facts showing a cause of action. These though imperfectly, informally or argumentatively averred, or though the pleading be indefinite or uncertain, such defects do not render the pleading obnoxious to demurrer. Where, however, as here, a suit is brought to recover on a policy of insurance or certificates covered thereby, it is not sufficient to aver in a complaint that a policy was issued and a loss sustained.

Insurances are of various kinds and many different forms of policy are in use covering very different risks.

Here none of the terms of the policy or of the certificates are given.

Is it not clear that in order to recover it must be proved that the policy or certificates were in force at the time of the loss and that the agreement was to pay such loss as occurred ?

No promise to pay any loss is alleged nor is any description of the perils insured against given. There is a single conclusion stated in paragraph 8 of the complaint, that “ there still remains a loss on so much of the cargo damaged as aforesaid which was covered by the. certificates aforesaid.”

Assuming the language “ which was covered ” to refer to the loss and not to the “damaged cargo,” and giving to “covered” the broadest signification as a concise mode of stating “that the loss sustained was one against which the assured’s interest was protected,” the objection still remains that in the absence of any statement of facts showing the terms or conditions of the policy

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or certificate this is a mere unsupported conclusion and one which by the most forced construction only can be tortured into an allegation that the loss was one insured against.

Admitting every fact distinctly alleged or that by reasonable and fair intendment can be implied, there is still an absence of the averments essential to plaintiffs’ cause of action, viz.: that the policy or certificates covered the precise loss by fire and water, or that when the loss occurred the policy and certificates were still binding and in force.

The conclusion reached by the trial judge justified the judgment sustaining the demurrer and it should be affirmed, with the costs and disbursements of this appeal, but with leave upon payment thereof and the costs of the demurrer in the court below to serve an amended complaint.

Van Brunt, P. J., and Daniels, J., concur.