The opinion of the court was delivered by: T.B. Greneker, Acting Associate Justice.
This is an action by the appellant, plaintiff below, wherein the plaintiff seeks judgment for both actual and punitive damages upon plaintiff's contention, denied by defendants, that the defendants did, with fraudulent intent accompanied by a fraudulent act, breach the terms of an insurance policy of which the appellant was the beneficiary.
The complaint, which is set out in full in the transcript, alleges that on or about the 27th of April, 1953, the defendant company issued its policy insuring the life of Leland Stewart, a brother of the appellant, in the amount of two thousand dollars against accidental death, and that Stewart came to his death accidentally on or about the 5th of October, 1953, and that by reason of his death the plaintiff, who was the beneficiary under the said policy, was entitled to be paid two thousand dollars, that the defendant company refused to pay the amount claimed, and this action was brought seeking the recovery of two thousand dollars actual damages and twenty-five thousand dollars punitive damages.
The respondents, in their answer, admitted having issued to the deceased a policy but alleged that the said policy had lapsed for non-payment of premiums and denied the other allegations of the complaint, expressly reserving the right to have heard their motion to strike from the complaint certain portions thereof, for the construction of the complaint as to the nature of the cause of action, or, failing therein, then to require the plaintiff to elect whether she would proceed ex contractu or ex delicto.
The motion to strike is directed to Paragraphs 4 and 5 of the complaint and the prayer thereof. They are as follows, the italicized portions being the parts stricken by the trial judge, he having refused to strike Paragraph 4 in its entirety as requested:
"Paragraph 4. That the defendant Insurance Company has fraudulently and with intent to defraud and deceive the plaintiff in this case refused to make payments due the plaintiff as provided for in the policy; that a few days after the death of the insured as alleged above an agent of the defendant Insurance Company, acting at all times herein mentioned within the course and scope of her (his) employment with said Insurance Company and for their benefit, falsely represented to a member of the plaintiff's family that the above policy was no good and was not in force and that no payments were due the plaintiff thereunder; that approximately two weeks following the death of the insured the plaintiff went to the district office of the defendant Insurance Company where the defendant, R.A. Geddings, acting at all times herein mentioned within the course and scope of his employment with the defendant Insurance Company and with actual and apparent authority to represent said Insurance Company did with intent to defraud the plaintiff, falsely represent to the plaintiff that she was not entitled to any benefits under the policy; that the terms of the policy are so clear that any person in the field of insurance and especially any person operating under the terms of its own policies which were drawn for and by said Insurance Company would know that the benefits were due and payable but that the defendant R.A. Geddings, acting on behalf of said Insurance Company, and with the intent to deceive and defraud the plaintiff, falsely represented to her that the policy had lapsed, and the plaintiff further alleges that the defendants with intent to defraud the plaintiff did lapse the aforementioned policy; that in spite of the defendants' false representation, the plaintiff requested that he furnish her certain proof of loss forms with which to file a claim for the benefits due her under the policy; that the defendant R.A. Geddings, acting for and in behalf of the defendant Insurance Company, falsely represented to the plaintiff that it would do no good for her to execute and submit said proof of loss forms, and with fraudulent intent to deceive and cheat the plaintiff out of the money due her, prevailed upon the plaintiff not to execute and submit said forms, well knowing that plaintiff could not collect the benefits due her under said policy without filling in said forms as required by the policy; and that the defendants further prevailed upon plaintiff to withhold filing the forms, well knowing that the policy demanded that the proof of loss be filed within ninety (90) days after the death of the insured and the defendants in their intent to defraud and cheat and deceive the plaintiff attempted to prevail upon the plaintiff to delay the filing of said forms until such times as they knew they would have a defense of failure to abide by the contract on the part of the plaintiff."
"Paragraph 5. That all of the aforesaid acts were done by the defendants in an attempt to defraud and cheat the plaintiff out of the benefits of the policy and that the aforesaid acts were done by the Insurance Company and by the agents and servants of said company acting within the course and scope of their employment; that the defendant Insurance Company has failed to make payments due under the policy and has with intent to defraud the plaintiff breached its policy and committed the aforementioned acts in connection with said breach, causing the plaintiff to be damaged in the amount of Two Thousand ($2,000.00) Dollars."
The trial judge also held that the complaint stated a cause of action ex contractu.
The appellant, now seeking a reversal of the decree of the lower court, takes six exceptions thereto, all of which have been considered. However, we think the appeal may be properly determined by a consideration of two questions:
1. Did the trial judge err in holding that the complaint stated a cause of action ex contractu rather than ex delicto?
2. Did the trial judge err in granting defendants' motion to strike?
We think that the trial judge was correct in construing the action to be one ex contractu. A casual reading of the paragraphs set out above shows that the appellant, who is the sister and beneficiary of Leland Stewart, alleged that at the time of the insured's death the policy was in full force and effect, that the company refused to pay her the amount due thereunder but represented to a member of her family that the policy was no good, that she was entitled to no benefits, that the policy had lapsed, that it would do no good to file proof of loss, and that the agents of the defendant ...