Coats v. West Coast Fire & Marine Insurance

The opinion of the court was delivered by Hoyt, J. — The notice to settle the statement of facts on appeal in this cause failed to name any place where such statement would be presented for settlement, and named a judge who did not try the case as the person before whom such settlement would be had. This being so, we are of the opinion that it was ineffectual for the purpose for which it was given, and that the motion of the respondent to strike the statement for that reason must be granted. The facts being out of the case, only one question is presented for our determination. Does the complaint state facts sufficient to constitute a cause of action? The action was brought upon a policy of insurance which was attached to the complaint. Under the provisions of said policy the company agreed to pay a sum not exceeding one thousand dollars, subject to the provisions contained in said policy, that the amount to be paid thereunder should not exceed the proportion which the amount insured under the policy bore to all the insurance. The complaint contained allegations which are conceded to be sufficient, with the exception that it contained no allegation, that there was no other insurance upon the property, or that there was other insurance, giving the amount thereof. The contention of appellant is, that one of these last named allegations was absolutely necessary to deter [377] mine the amount which could properly be claimed as due upon the policy upon which the action was founded. Its argument in this regard is, that the promise of the company was not to pay an absolute sum subject to certain conditions subsequent, but that its obligation was to pay such a sum not exceeding one thousand dollars as the amount of the policy bore to the whole amount of insurance. And that for that reason the ascertainment of the amount of other insurance, or of the fact that there was no other insurance, was a condition precedent without which no liability under the policy could be established. The reasoning in this regard is somewhat technical and refined, yet we think it should have force, and if the question of the sufficiency of this complaint had been seasonably raised in the court below by demurrer or other appropriate method, we think it should have been held insufficient. Such, however, was not the case. In the court below, defendant saw fit to answer this complaint and go to trial upon the issues made therein, and for that reason an entirely different rule as to the construction of this complaint prevails here from what would have obtained had the question of its sufficiency been seasonably raised. Appellant calls our attention to the statute authorizing the question of the sufficiency of the complaint to be raised for the first time here, and claims that under such provision it is entitled to have the case reversed, if, in fact, the complaint is insufficient. The provision of the statute is unquestioned, and this court must give it force. It does not follow, however, that in order to give it force, this court must look upon the complaint just as the court below would have done upon a demurrer interposed there. An entirely different rule of construction of pleadings obtains after verdict from what would have obtained before. Every reasonable intendment after verdict, comes to the aid of the pleading; while before verdict the pleading is strictly construed as against the [378] pleader. Beside, in this case, the facts not being here, we are entirely unadvised as to the progress of the cause in the court below. For aught we know, full and satisfactory proof as to these very allegations may have been introduced by the plaintiff without objection on the part of the defendant, and if such was the fact, we are satisfied that it could not be successfully urged that the defect in the complaint was not cured. If such would be the construction here of this complaint with sucha fact appearing affirmatively in the record, then such must be our construction of it when the facts are not brought here at all, for the reason that it is the duty of the court to presume all possible facts necessary to sustain the judgment of the lower cou^fc The defect in this complaint could have been supplied by amendment. And this court should presume that an amendment would have been allowed had the court’s attention been called to such defect. Of course the defects in a complaint may be of such a nature that no presumption that can be indulged in will make it good. In such a case this court must give force to the provision of the statute above referred to, and hold it bad, even although its sufficiency was not at all challenged in the lower court. In the case at bar, the defects are not of this nature, and as against an attack first made in this court, the complaint must be held to be sufficient. The judgment must be affirmed. Anders, G. J., and Stiles and Scott, JJ., concur.