(190 P.)

It is clear that under the pleadings in the foregoing case, if the defendant wished to distinct causes of action had been united in urge the objection that two separate and one complaint, under section 6534, nevised

Codes of 1907, a demurrer, and not a motion to separately state and number, was the proper remedy.

circulated false and defamatory statements "A motion to exclude evidence, or an objecconcerning plaintiff, and concerning her oc- tion to receiving it, is not the remedy for the cupation as aforesaid; (d) did wrongfully intermingling in one count of several causes of and maliciously urge and solicit persons in- action; nor is there remedy other than demurrer, by which the complaint may be attacked tending to engage plaintiff's services as a upon the ground that causes of action are immanicurist and hairdresser not to so engage properly united therein." her, whereby plaintiff suffered loss of business; (e) did falsely charge plaintiff with having committed crimes, and thereby, without probable cause, induced police officers to seek entrance into said premises in the nighttime, and to threaten plaintiff with arrest, by reason of which plaintiff suffered mentall distress and suffering; (f) that, in the absence of plaintiff, defendants entered said premises without her consent, and fastened and barred the doors thereof, whereby plaintiff was compelled to seek refuge elsewhere; (g) that defendants wrongfully and maliciously seized and detained wearing apparel and personal belongings of plaintiff and her goods and accessories used in her said occupation, all of the value of approximately $1,500. It is further alleged that by reason of such acts, plaintiff has been damaged in the sum of $5,000. She demanded judgment: First for $5,000; and, second, for punitive damages in the sum of $15,000.

All of the foregoing, with the exception of the formal allegation as to plaintiff's occupancy of the premises, is set forth in one paragraph, as one cause of action.

The defendants served and filed a motion demanding that plaintiff be compelled to "separately state and number the causes of action united in one cause of action" upon different grounds, asserting in effect that the complaint sets forth causes of action for damages based upon the following: (1) Eviction; (2) unlawful interference with her occupation; (3) acts of defendant James L. Dickson, to which the other defendant was not a party; (4, 5) deprivation of use of bathroom and lights; (6) defamatory statements; (7) de famatory statements derogatory to plaintiff's business; (8) urging plaintiff's clients to refrain from dealing with her; (9) entrance of police officers to her apartment; (10) barring doors of the apartment; (11) conversion of her property. This motion was sustained, and, the plaintiff refusing to plead further, Judgment of dismissal was entered, from which this appeal was taken.

It is urged by plaintiff that a motion was not defendant's proper remedy, and that defendants should have demurred, and the de cision of this court in Bandmann v. Davis, 23 Mont. 382, 59 Pac. 856, is cited in support of her position. An examination of the opinion in that case, however, shows that the point raised on this appeal was not under consideration. There the defendant at the trial objected to the introduction of evidence because one of the causes of action arose ex delicto, whereas the other arose ex contractu, and was not separately stated and numbered. The court said:

Pac. 887, where three separate causes of action were stated in one count, and no objection to the form of the complaint was made until plaintiff had rested upon the trial, the court held:

In Galvin v. O'Gorman, 40 Mont. 391, 106

"The proper practice in such a case is outlined in 5 Encyclopedia of Pleading and Practice, 336, where it is said: "The clear weight of authority, however, is that the proper remedy for a failure to state separately is a motion to make the complaint more definite and certain by separately stating the causes of action.' This same rule is stated in Pomeroy's Code Remedies (4th Ed.) section 341 (*section 447), and is approved in City Carpet Beating, etc., Works v. Jones, 102 Cal. 506, 36 Pac. 841."

In Cohen v. Clark, 44 Mont. 151, 119 Pac. 775, a defendant, who had moved to have the plaintiff separately state and number certain alleged causes of action, was held to have waived the right to object upon the appeal that the complaint was indefinite and uncertain, for the reason that objection had not been made upon that ground.

While there is a distinction between a demurrer and a motion, a motion to require causes of action to be separately stated and numbered has many, if not all, of the elements of a special demurrer. It has been held in this jurisdiction to be an abuse of discretion to refuse to allow a plaintiff to reply after the overruling of a motion made by the plaintiff, directed against the answer, the court there holding that a motion for judgment on the pleadings in some respects is merely a demurrer. Floyd v. Johnson, 17 Mont. 469, 43 Pac. 631.

[1] A motion, therefore, to require plaintiff to separately state and number her causes of action was a proper method of attacking the complaint. See, also, Cohen v. Clark, supra.

[2] It is next contended that because all of the acts of the defendants were in pursuance of a conspiracy against the plaintiff, but one wrong was committed; hence plaintiff could properly set forth all the allegations of her complaint in one cause of action.

Section 6533 of our statute makes provision

for the inclusion, in one action of certain f causes of action, and then provides:

"The causes of action so united must all appear on the face of the complaint, to belong to one only of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated and numbered; but an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to the person."

The Supreme Court of Wisconsin in the case of Herman v. Felthousen, 114 Wis. 423, 90 N. W. 432, said:

"The test to be applied in order to determine whether a complaint states more than one cause of action is whether, looking at the whole pleading, there is more than one primary right presented thereby for vindication. There may be many minor subjects, and facts may be stated constituting independent grounds for relief, either as between the plaintiff and all the defendants, or the former and one of the latter, or between defendants, and there be still which all the other matters are so connected but a single primary purpose of the suit, with as to be reasonably considered germane there

In this action plaintiff seeks to recover, among other things, damages for statements in the nature of slander, alleged to have injuriously affected her business and reputa-to-parts of one entire subject, presenting to tion; injury to and conversion of her prop erty, and injury to her person by reason of the entry of her premises by the defendants. This court, in Cohen v. Clark, supra, said:

"Several breaches of a single contract may constitute but one cause of action, and if the several acts pleaded do make up but a single cause of action, one count in the complaint is sufficient to state them. Under equally wellrecognized rules of pleading, a plaintiff is prohibited from splitting a single cause of action. But just what constitutes a single cause of action is frequently difficult to determine. At common law the question was easily settled, for the form of the action determined its character. Under the Codes, forms of action are abolished and the facts constituting plaintiff's complaint must be stated, and the construction put upon a pleading must now determine whether it states one cause of action only or more than one. 'A cause of action is the right which a party has to institute a judicial proceeding,' * and consists of a union of the plaintiff's primary right and an infringement of it by the defendant. Manifestly, then, if plaintiff pleads several contracts and a breach of each, he states several causes of action; but if he pleads but a single contract and a breach of it in one or more particulars, he states but a single cause of action, and it is immaterial how the complaint is paragraphed."

* * *

The rule as laid down by Mr. Pomeroy in his work on Code Pleading (4th Ed.) § 350, is as follows:

the court but one primary ground for invoking its jurisdiction. That was the rule before the Code, and it was preserved thereby in unmistakable language, as this court has said on many occasions."

See Level Land Co. v. Sivyer, 112 Wis. 442, 88 N. W. 317. And in Adkins v. Loucke, 107 Wis. 587, 83 N. W. 934, the court said:

"The infallible test by which to determine whether a complaint states more than one cause of action is, Does it present more than one subject of action or primary right for adjudication? * * * If it stand that test, no matter how many incidental matters may be connected with the primary right, rendering other parties than the main defendant proper or necessary to the litigation for a complete settlement of the controversy as to plaintiff, or for the due protection of their rights as against him or between themselves, there is yet but one cause of action, and a demurrer upon the ground of the improper joinder of causes of action will not lie."

Manifestly, in this case, the plaintiff alleges the invasion of more than one primary right. She asserts claims upon any one of which, under proper pleadings, she would be able to maintain her suit. Had she brought separate actions for the injury or conversion of her personal property, for the alleged defamatory words, or the invasion of her premises, her pleadings could not be successfully attacked because she had "split" her cause of action. Each cause, if proven, would establish the invasion of a primary right, each independent of the others.

It is apparent that plaintiff has failed to distinguish between the separate statement and numbering of different causes of action and a demurrer to a complaint because causes of action have been improperly united in the

"If the facts alleged in the pleading show that the plaintiff is possessed of two or more distinct and separate primary rights, each of which has been invaded, or that the defendant has committed two or more distinct and separate wrongs, it follows inevitably *** that the plaintiff has united two or more causes of action, although the remedial rights arising from each, and the corresponding reliefs, may complaint. be exactly of the same kind and nature. If two The district court was not in error in diseparate and distinct primary rights could be recting that the plaintiff be required to sepinvaded by one and the same wrong, or if the single primary right should be invaded by two arately state and number her causes of acdistinct and separate legal wrongs, in either tion. The judgment is affirmed.

case two causes of action would result; a fortiori must this be so when the two primary rights are each broken by a separate and dis

Affirmed.

BRANTLY, C. J., and HOLLOWAY, MAT

(58 Mont. 153)

(190 P.)

NELSON v. MUTUAL LIFE INS. CO. OF

NEW YORK. (No. 4159.)

(Supreme Court of Montana. June 25, 1920.) 1. Insurance ~349(2)—Failure to pay a life insurance premium works forfeiture.

Time is of the essence of all insurance contracts, and, even though the condition be construed as subsequent, a failure to pay the life insurance premium forfeits the contract, and, when payable in installments, failure to pay any installment works a forfeiture.

2. Insurance 646 (5)-Plaintiff pleading reinstatement of insured must prove waiver of forfeiture.

In an action to recover on a life insurance contract, a plaintiff pleading reinstatement of insured assumes the burden of establishing the

waiver of forfeiture.

"Premiums. All premiums are payable in advance at said home office or to any agent of the company upon delivery, on or before date due, of a receipt signed by either the president, vice president, second vice president, secretary or treasurer of the company and countersigned by said agent.

"A grace of 30 days (or 1 month, if greater), subject to an interest charge at the rate of 5 per centum per annum, shall be granted for the payment of every premium after the first, during which time the insurance shall continue in force. If death occur within the period of. grace, the overdue premium and the unpaid portion of the premium for the then current policy year, if any shall be deducted from the amount payable hereunder.

"Except as herein provided, the payment of a premium or installment thereof shall not maintain this policy in force beyond the date when the next premium or installment thereof is payable. If any premium or installment 3. Insurance365(2)—Life policy not re- thereof be not paid before the end of the peinstated by payment without furnishing sat-riod of grace, then this policy shall immediisfactory health certificate.

Evidence held to show that a life insurance policy had lapsed for a nonpayment of a premium installment and was not reinstated by the subsequent payment of premium alone, and that the company had not waived the forfeiture by holding subsequently paid premium installment while awaiting certificate of health.

Appeal from District Court, Yellowstone County; Charles A. Taylor, Judge.

ately cease and become void, and all premiums previously paid shall be forfeited to the company, except as hereinafter provided.

"Reinstatement. Unless it shall have been surrendered for its cash value, this policy may be reinstated at any time within 3 years from date of default in payment of any premium, upon evidence of insurability satisfactory to the company and upon payment of the arrears of premium with interest thereon at the rate of 5 per centum per annum.

"Agents are not authorized to modify this policy or to extend the time for paying the premium."

By mutual agreement, the policy was changed to permit the annual premiums to be paid in quarterly installments of $16.49 on February 10, May 10, August 10, and November 10, of each year.

The determinative issue in the case is presented by the sixth paragraph in the complaint, as follows:

"That said Merl S. Nelson fulfilled all the conditions of said policy on his part to be performed, and paid all premiums provided for in said Af-policy up to the date of his death, in accordance

Action by Lura A. Nelson against the Mutual Life Insurance Company of New York. From a judgment for defendant and order denying new trial, plaintiff appeals. firmed.

James L. Davis and F. B. Reynolds, both of Billings, and Clyde McLemore, of Baker, for appellant.

Charles R. Leonard and Earle N. Genzberger, both of Butte, and O. F. Goddard, of Billings, for respondent.

with said policy and agreement for quarterly payments, as above mentioned, except the installment of premium which was due August 10, 1915, was paid October 13, 1915, and the installment due November 10, 1915, was never paid."

All the allegations of the complaint are denied by the answer. The premium payments were all met to the satisfaction of the company, until August 10, 1915, the policy being in full force on that date, at which time, however, a quarterly payment of $16.49 on the annual premium fell due. On October 8 insured's check for that amount was received by the company and placed in its susThe insured died on Decem

COOPER, J. Action to recover upon a policy of life insurance in the sum of $2,000. The cause was tried by the court without a jury and resulted in a judgment for the defendant. Plaintiff appeals from the judgment and from an order denying her a new trial. The provisions of the policy pertinent to pense account. this inquiry are as follows: ber 13, 1915.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

"3. The time for the payment of the premium which became due November 10 was extended to December 25, by reason whereof the policy was in full force and effect at the death of the insured."

If the retention of the proceeds of the check is to be construed as a waiver of the health certificate the policy requires, or, what amounts to the same thing, "evidence of insurability satisfactory to the company," the conclusion would logically follow. Did the company forego this important right?

From the testimony of Miss Mary I. Williams, it appears that on October 14, 1915, after the receipt and deposit of the check, the following letter was sent to the insured:

"Dear Sir: We beg to acknowledge receipt of check for $16.49 tendered in payment of the premium due August 10 last under your policy No. 2043467, but as this remittance was not received within the 30 days of grace allowed by the company the policy has now lapsed, and ir order to restore same it will be necessary for you to furnish the company with a satisfactory certificate of health. We are inclosing you herewith blank for this purpose, which, if you will kindly take to either of our examiners, Dr. James Chapple or Dr. E. W. Thuerer, of your city, he will be glad to complete same for you. The fee charged in this connection will be paid by the company. Trusting you will give this matter attention at your earliest convenience, so that your policy may be restored, we are, etc. W. H. Shields, Manager." To this there was no reply.

On December 8, 1915, the following letter was sent from the office of the defendant in

the business:

On September 9, 1915, the following letter was mailed to the insured by the agent of Spokane, Wash., in the regular routine of the company in the city of Spokane, Wash., and received in due course:

An

"Dear Sir: On October 14, last, we acknowledged receipt of your check for $16.49 tender"Mr. M. S. Nelson, Billings-Dear Sir: 1 ed in payment of premium due August 10, last, regret to note that you have allowed your pol-under your policy No. 2043476. Of course, this icy to lapse by default in the payment of the check could not be accepted, as your policy had last premium. This may have been an over- already lapsed; it was therefore placed in sight, or there may be something about your suspense pending receipt of satisfactory cercontract which you do not fully understand. In tificate of health, but to date we do not apeither event, I trust you will favor us with your pear to have received this certificate. reason for discontinuing. Frequently a policy other quarterly premium of $16.49 fell due Nothat does not exactly meet the requirements of vember 10, last, and check for this amount a policy holder may be changed to some other must now accompany the certificate of health plan, or, if necessary, reduced in amount. If to this office. We would very much like to it is inconvenient for you to pay the premium have you give this matter your attention at your at this time, it is possible we can assist you earliest convenience, so that the same may be with a loan, if the contract has been in force cleared up before the first of the year. If we three years; or the payments may be changed do not hear from you on or before December to semiannual or quarterly. At any rate we 25, we will refund your check of $16.49." would like to hear from you on the subject. A life insurance policy is too valuable an asset to your estate to be cast aside if it can possibly be avoided, and it should be borne in mind that to drop a policy or change it for a contract in another company is always to the detriment and cost of the insured. Being a mutual company our interests are the same, and we are always pleased to answer any questions or make explanations which may be of service to our members. Trusting that you will take up the matter of restoring the policy, and that we may hear from you by return mail, I am, etc. W. H. Shields, Manager."

The following indorsement appears on the bottom of the letter last referred to, in the handwriting of Merl S. Nelson: "Inclosed find check. Merl S. Nelson, 203 S. 30th St., Billings, Mont." This, the father of the insured testified, was found shortly after his death, in a tin box containing his private papers, together with a canceled check dated September 5, 1915, in the sum of $16.49, showing its indorsement and deposit by defendant

[1] In the case of Kennedy v. The Grand Fraternity, 36 Mont. 325, 92 Pac. 971, 25 L. R. A. (N. S.) 78, the constitution and by-laws of the defendant society provided:

"That if the assured, denominated 'frater,' shall fail to pay his monthly dues on or before the last secular day of the month for which the same are due and payable, he shall 'thereupon become suspended by his own act, and his benefit certificate or certificates shall be absolutely void.'"

This provision is identical, in effect, with the forfeiture clause in the policy under consideration. It seems to be well settled that time is of the essence of all insurance contracts; and, even though the condition be construed as a condition subsequent, failure to pay when due forfeits the contract. Insurance Co. v. Statham, 93 U. S. 24, 23 L. Ed. 789. When the annual premium is payable in installments, a failure to pay any installment works a forfeiture. Klein v. Insurance

(190 P.)

so held in the Kennedy Case, where the rule evidence that he is in good health, and securis stated thus: ing the approval of the Grand Secretary."

"The mere failure

to pay his dues for April and May ipso facto worked a forfeiture of his membership and an abrogation of the contract between the parties."

[2] To the same effect is the case of Neilsen v. Provident, etc., Co., 66 Pac. 663.1 See,

also, 2 Bacon on Life & Accident Insurance,

453; Holly v. Metropolitan Insurance Co., 105 N. Y. 437, 11 N. E. 507. The language of the policy in suit can mean nothing less. Punctuality in the payment of the premiums is a prerequisite in all contracts of life insurance. Indeed, no life insurance company could continue to do business without a strict

adherence to the terms of its contracts. The unequivocal holding in the Kennedy Case is that a failure on the part of the insured to meet the payments within the time provided removes the liability of the insurer, unless, by a course of dealing with the insured, it has evinced an intention to waive evidence of continued insurability, as this language implies:

To precisely the same effect are New York Life Insurance Co. v. Scott, 23 Tex. Civ. App. 541, 57 S. W. 677; Clifton v. Mutual Life Insurance Co., 168 N. C. 499, 84 S. E. 817. Collins v. Metropolitan Life Insurance Co., 32 Mont. 329, 80 Pac. 609, 1092, 108 Am. St. Rep. 578, is in harmony with these views.

By the express terms of the policy, the liability of the defendant was unalterably fixed. It could not escape payment of the principal sum to the beneficiary upon the death of the insured, had the premiums been paid according to the terms of the policy. By the same token, the beneficiary could not hope to enjoy its fruits without prompt payment of the premiums, or within the time fixed by the policy. These obligations were mutual. Upon default of any one of the payments specified the liability of the company ceased immediately, and the parties were not restored of Nelson had been proven to the satisfaction to their status quo ante until the insurability of the company, and the arrears of the premium with interest at the rate of 5 per centum per annum paid, as the language of the policy

"This policy may be reinstated at any time, within three years from date of default in pay-plainly indicates. The August 10 installment of any premium upon evidence of insurability satisfactory to the company and upon payment of the arrears of premium with interest thereon at the rate of 5 per centum per annum." 19 Ency. of Law (2d Ed.) 44, 47, and cases cited; Butler v. Grand Lodge, A. O. U. W., 146 Cal. 172, 79 Pac. 861; 2 Bacon on Benefit Societies & Life Insurance (3d Ed.) § 385.

[3] The plaintiff in the Kennedy Case, as in the case at bar, pleaded reinstatement of the insured, thereby assuming the burden of establishing a waiver of the forfeiture. The claim was there made that, because the application for reinstatement was accompanied by the necessary fees then in arrears, assured had met all the requirements of the constitution and by-laws of the society, and neither the secretary nor its officers could refuse to recognize such reinstatement.

ment was nearly 2 months overdue, interest accruing meanwhile. Of the interest due no tender was made. The check did not reach the office of the company until nearly 60 days after the payment was due. To work a restoration of the policy two things were necessary under its provisions: Proof of insurability satisfactory to the company, and a tender of the overdue premium and interest from the time of default. Assuming that by retaining the check the company waived the interest on the overdue premium, evidence that it did not waive production of the health certificate, as the policy required, is furnished in the three letters addressed to the insured, advising him that the policy had lapsed and that the health certificate was a condition precedent to the restoration of his rights in the premises. Thompson v. Insurance Co., 116 Tenn. 557, 92 S. W. 1098, 6 But, as we have seen, a contract of insur-L. R. A. (N. S.) 1039, 115 Am. St. Rep. 823; ance can only be kept alive by payment of the premiums within the time specified. In case of default, as here shown, it was incumbent upon the insured to meet the provision of the policy requiring certificate of good health "satisfactory to the company," before it could be revived, unless production of the health certificate was waived by the company. Says Mr. Justice Holloway in the Kennedy Case: "This contract requires, in addition to the acts and things to be done on the part of the insured, that the society, or its officers, shall take affirmative action which involves the exercise of discretion and judgment; for the insured is only reinstated upon furnishing satisfactory

1 Reversed in bank, See 139 Cal. 332, 73 Pac. 168, 96 Am. St. Rep. 146.

190 P.-59

Melvin v. Piedmont Insurance Co., 150 N. C. 398, 64 S. E. 180, 134 Am. St. Rep. 943.

In Clifton v. Mutual Life Insurance Co., 168 N. C. 499, 84 S. E. 817, the Supreme Court of North Carolina, dealing with a similar question, said:

"We agree with his honor that there is no evidence of a waiver of the conditions of the policy. The defendant had a right to receive the premium and hold it, awaiting the return of the health certificate. That not being forthcoming, the defendant properly returned the premium after the death of the insured. Receiving the premium under such circumstances is no evidence of a waiver. Insurance Co., 143 N. C. 257, 55 S. E. 623, the Chief Justice very pertinently says: 'It is always sad when one who has made payments

In Hay v.