Murphy v. North British & Mercantile Insurance

Smith, P. J. This cause was before us on.a former appeal, 61 Mo. App. 335, and it is agreed by counsel that that case may be considered in all its bearings upon this. A reference to the statement made by the judge who wrote the opinion on the former appeal will be found sufficient for a proper understanding of the questions raised by the present appeal. The plaintiff had judgment in the circuit court and the defendant has appealed. I. At the inception of the trial in the circuit court, the defendant objected to the introduction of any evidence on the ground that the petition failed to [82] allege that the indemnity sued for was due and payable at the time of the filing of the same.- And this objection to the sufficiency of the petition was again urged after judgment in a motion to arrest. The objection thus made and emphasized was by the court overruled and this, it is here insisted, constitutes reversible error. By reference to the petition it will be observed that it alleges the execution and delivery of t-he policy, the description and situation of the property covered by it, the payment of the premium, the total destruction by fire of the property, and the value- of the same. It is therein, further alleged “that immediately after the loss the plaintiff notified the defendant thereof and made proof of loss, pursuant to the terms and conditions of the policy, and that plaintiff had duly performed all the terms and -conditions thereof on his part;” and that the defendant had failed and refused to pay the amount of said loss, though the same had been often demanded. Insurance: practice: pleading-: depremature action': jeofails. The rule of practice is that if a matter material to plaintiff’s cause of action be not expressly averred in the petition, but the same be necessarily implied from what is expressly averred, the defect is i i tit i n cured by verdict. In such case a defendant must make his objection either u by demurrer or motion. He can not make it at the trial by objection to the introduction of evidence. A plea to the merits waives such an' objection. Bank v. Leyser, 116 Mo. 51; Hurst v. Ash Grove, 96 Mo. 168; Bank v. Scalzo, 127 Mo. 164; Grove v. Kansas City, 75 Mo. 672; Bower v. Kansas City, 51 Mo. 454; Elfrank v. Leiler, 54 Mo. 134; Lycett v. Wolff, 45 Mo. App. 489. There is a marked distinction under our practice act between a petition which defectively states a cause of action and one which states no cause of action at all. A defective cause of action is one [83] thing and a defectively stated cause of action is another. A petition stating a cause of action of the latter kind is good after judgment. Edmonson v. Phillips, 73 Mo. 59; State v. Bush, 77 Mo. 586; Bank v. Leyser, 116 Mo. 51. So it has been ruled that when a petition fails to state a cause of action, owing to the omission of an essential averment, and its terms are not sufficiently general to comprehend such an averment by fair and reasonable intendment, an oral demurrer can be made to it at the trial by the objection to the admission of any evidence. Such a demurrer, however, 'does not entirely take the place of a formal demurrer by pleading and should not be sustained for informality in the statement of an essential fact. Hatten v. Randall, 48 Mo. App. 203; Young v. Shickle, 103 Mo. 324. It seems to me that the plaintiff’s petition at least defectively states a cause of action, and that its terms are sufficiently general by fair and reasonable intend.ment to comprehend the supposed omitted essential averment. Though the petition does not expressly allege that the indemnity claimed was due and payable at the time of the commencement of the action, I think that fact is necessarily implied from what is therein stated. The allegation of the petition “that the plaintiff has duly performed all the terms and conditions of the policy,” coupled with the other allegations hereinbefore referred to, clearly imply that the indemnity claimed was due and payable at the time the action to recover the same was commenced. Section 2113, Revised Statutes, provides that when a verdict shall have been rendered in any cause the judgment thereon shall not be reversed for want of any allegation or averment on account of which a demurrer could have been maintained, or for omitting any allegation or averment without proving which the [84] triers of the issue ought not to have given such verdict. And this statutory rule of practice has been invoked and applied in a great number of adjudged cases. Richardson v. Farmer, 36 Mo. 36; Jones v. Lauderman, 39 Mo. 287; State v. County Court, 51 Mo. 522; State v. Webster, 53 Mo. 135; Bank v. Gilpin, 105 Mo. 17; Bank v. Leyser, 116 Mo. 51; Duff v. Fire Ass’n, 129 Mo. 460; Knox Co. v. Brown, 103 Mo. 233; Buck v. Railway, 46 Mo. App. 555; Bassett v. Telegraph Co., 48 Mo. App. 566. And in recognition of this statutory rule of practice, it has been declared that when statements in pleadings are defective and uncertain, evidence given in support of such statements will cure such defects and uncertainties. Edwards v. Railway, 74 Mo. 117; Owen v. Crum, 20 Mo. App. 121. Tested by these rules I think the petition sufficient and the objection thereto stated at the outset, together with the further objection that the petition does not allege that the personalty destroyed by the fire was, at the time of the fire, in the same place where it was insured, should not now be sustained. Ni-idencedPproofs II. In the progress of the trial plaintiff offered evidence tending to prove a waiver by defendant of proofs of loss, to the introduction of which defendant objected, on the ground that the petition alleged performance on the part of the plaintiff: of the conditions of the policy. The overruling of this objection by the defendant is assigned as error. I think the ruling just stated should be approved. I am not unmindful of the able reasoning of Judge Ellison, presented in his opinion in McNees v. Insurance Co., 61 Mo. App. 335. Nor can I say, if the question of pleading and practice there discussed were res integra in this state, that I would not adopt the conclusion reached by him. But it seems to mo that the rule is now very well settled in this state [85] that under the allegation in the petition that all conditions of the policy have been performed, proof of waiver is admissible and is proof of performance within the meaning of the conditions of the policy. Richardson v. Ins. Co., 57 Mo. 413; McCullough v. Ins. Co., 113 Mo. 606; Kyle v. Ins. Co., 11 Mo. 278; Russell v. Ins. Co., 55 Mo. 585; Okey v. Ins. Co., 29 Mo. App. 105; Travis v. Ins. Co., 32 Mo. App. 198; Maddox v. Ins. Co., 39 Mo. App. 198; Roy v. Boteler, 40 Mo. App. 213. _¡arbitration: reasonable «me. III. Finally, the defendant objects that there should have been no recovery in the case for the reason that the request for the appraisement was not made within a reasonable time. The arbitration ciause |n policy now before us is precisely the same as that in McNees v. Ins. Co., decided at this term, wherein we held the demand to be in time, and we need do no more than to refer to that case for the reasons governing the disposition of this. The result is that the judgment must be affirmed. All concur. Ellison, J. While I recognize the fact that in several opinions it has been assumed, so far as concerns insurance cases, that a waiver may be proved under an allegation of performance, yet I do not recede from the position taken in the McNees case, 61 Mo. App. 341, that it has resulted from a total misconception of what was stated and decided in the Kyle and Russell cases, 11 Mo. 291, 55 Mo. 593. It seems to me to be a reflection on the administration of the law, that without pretense of cause or excuse, there should be one rule of practice applied to insurance cases, and a directly opposite rule to all other eases.