Shaver v. Mercantile Town Mutual Insurance

GILL, J. This is an action to recover insurance. Plaintiff had judgment below and defendant appealed. In the cir- • cuit court, defendant, both by demurrer and motion in arrest, objected to the sufficiency of the petition, claiming that it failed in several respects to state facts sufficient to constitute a cause of action. Omitting the mere formal allegations relating to the incorporation of defendant, etc., the substance of the petition reads: “That on the — day of March, 1897, the defendant contracted with and insured the plaintiff by their certain policy of fire insurance on his stock of general merchandise for $1,250, and on office furniture, show cases and fixtures for •$250, while contained in his store house (here describing the location) in Clinton county, Missouri, aggregating the sum ■of fifteen hundred dollars; that the stock of general merchandise and furniture and fixtures was of the value of three thousand dollars and more, and was the property of plaintiff at [424] the time of the fire herein mentioned; that on the 27th day of October, 1897, the said stock of general merchandise, while contained in the said storehouse, was, with the said storehouse, totally destroyed by fire, to the damage to plaintiff in-the sum of three thousand dollars and more. Wherefore-plaintiff asks judgment for the sum of fifteen hundred'dollars- and costs of this action.” Insurance: pleading: allegation of ownership. On the first hearing of this case we decided that the petition was fatally defective, because, as we thought, it failed to allege that plaintiff was the owner of the goods when the policy was issued, that the-allegation that the insurance was taken “on his stock of general merchandise,” etc., was not sufficient, basing our decision on the Clevinger case reported in 71 Mo. App. 73. Since the first decision,, however, we have, oh further reflection, concluded that said allegation, though defective, should be held sufficient after verdict. The reasons for thus holding are stated in Gustin v. Ins. Co. and in Boulware v. Ins. Co., 77 Mo. App. 639, both decided at the last term. ~onWterae§T insurance. But there are other and more serious defects in the petition above quoted. Presumably the pleader intended to-ground the action on a contract whereby defeudal agreed, for a valuable consideration,, to indemnify the plaintiff against lossbyfireon his merchandise, etc., during a certain period covered by the policy; but the petition fails .to state that the defendant undertook to insure for a definite period. It merely alleges that in March, 1897, the defendant by its policy of insurance “contracted with and insured the plaintiff” on certain property and that it was about seven months thereafter destroyed by fire. Whether the insurance covered the date of loss does not appear. [425] ——: anegacovery: interest, [424] Again the petition alleges insurance on a stock of general merchandise contained in a certain building for $1,250 and [425] $250 insurance on certain office furniture, show cases and fixtures situated in the same building; but when alleging destruction of property the petition declares only the loss of the general merchandise, leaving it to be inferred that the furniture, fixtures, etc., were saved and rot destroyed. And yet the plaintiff was permitted under the court’s instruction to recover the insurance, with interest added, for the general merchandise and the furniture and fixtures, whereas, according to the petition, none of the latter were destroyed, and whereas also no interest was asked in the petition. The petition also fails to allege that the insurance money was due at the institution of' the suit, nor does it allege anything from which such fact may be reasonably inferred. PfMtf™aiieg¿tion v. failure of averment: cure by verdict. It is useless to insist that these various errors are cured by verdict. Defective allegations of material facts are so cured, but not so as to the entire failure to set out the constitutive, indispensable elements of n „ _ a cause of action. Ihe absence oi these may , be objected to when the case gets into the appellate court even though such objections were not raised in the lower court. Smith v. Burrus, 106 Mo. 94, and numerous other cases that might be cited. The j'udgment will be reversed and cause remanded, so that the plaintiff may amend his petition and the cause be then retried. All concur.