Commercial Insurance v. Treasury Bank

Mr. Justice Thornton delivered the opinion of the Court: The declaration sets out, in liceo verba, a copy of a policy of insurance payable to Boyington, Cash & Wilder, on the back of which is the following indorsement: “Loss, if any, under this policy, is hereby made payable to the Treasury Bank of Chicago, as its interest may appear. Nov. 28, 1866, J. Farmer, Sec’y.” There is no averment in the declaration that this indorsement was made by the company, or that the assured requested it, or consented to it. Objection was made to the introduction of the policy, when offered, and a motion in arrest of judgment was also made. The pleader has merely averred, in the declaration, that the insurance company executed to Boyington, Cash & Wilder a certain policy in writing, of the Words and figures following,— and then follows the policy, dated Aügtst 10, 1866. On the back is the indorsement before referred to, of a subsequent date, 'but the declaration contains no averment whatever in reference to the indorsement. It was essential to this action that the Treasury Bank should have a right to the policy. This it can not have, without the assent of the company and the assured. They must act,in effecting the indorsement. Without some allegation in the pleading, the mere indorsement proves nothing. • Ho proof would be required in regard to it. The averment that the following policy was executed to the party originally assured, does not, in the remotest degree, connect the bank with the policy. This averment has reference solely to the original policy, and not to the indorsement; because the execution of the latter, so far as the pleadings show, was long subsequent to the execution of the former. The mere indorsement, then, without apt averments to show that it was a part of the policy, and the. manner in which it became such, conferred no right upon the bank to maintain the suit. • Is the omission to state the cause of action cured by verdict? The rule is, that, if the plaintiff totally omit to state his title or cause of action, it need not be proved at the trial, and therefore there is no room for presumption. Rushton v. Aspenwall, Doug. 679. This is not the case of a title defectively set out, which will be aided by verdict, but the total omission of any title in the plaintiff. Ho implication can arise from any. allegation of right in the plaintiff, for there is none. Hence nothing is presumed ' after verdict, but what is expressly stated in -the declaration, or ■ necessarily implied from the facts stated. 2 Tidd Pr. 919. Sergeant Williams, in the note to Strund v. Hogg, 1 Wm. Saund. 228e, says: “ The plaintiff need not prove'more than e what is expressly stated in his declaration, or is necessarily implied from those facts which are stated.” See also Weston v. Mason, 3 Burr. 1725. The doctrine is fully settled by all the authorities, that, if a cause of action be stated, though ambiguously and defectively, a general verdict will cure such ambiguity and defect. The presumption then will be, that all the proof necessary to complete the cause of action was made at the trial. But if, as in this case, there is no statement of any cause of action, no averment that the loss was payable to the plaintiff, with the consent of the company, the omission is not cured by verdict. The motion in arrest should have prevailed, and the judgment is reversed and the cause remanded. Judgment reversed.