Coleman v. Phoenix Insurance

69 Mo. App. 566 | Mo. Ct. App. | 1897

Lead Opinion

Bond, J:

This is an action for the recovery of damages to personal property alleged to have been destroyed by fire while insured by defendant for $1,000. The answer of the defendant insurance company set up a breach of the' conditions of the policy. The other defendants, alleged in the petition to be claimants of the insurance money, answered by a general denial. There was a verdict for plaintiff, from which the insurance company appealed.

Fire insurance: loss of personal property: pleading: proof: aider byby verdict. The first question presented, is the sufficiency of the petition to state a cause of action. It was objected to in this respect on the trial, the objection overruled and exception saved. The petition nowhere states the value of the property insured, either in express terms or by necessary implication. All that is said in referring remotely to this subject, is a statement that the property was totally destroyed by fire, and “wholly lost to the plaintiff and the said mortgagees to their damage $4,000 ”

Suits for losses to personal property under contracts of insurance are not governed by sections 5897 and 5898, Revised Statutes, 1889 (these sections referring only to real- estate). In such actions the value of the personal property is a constitutive fact, and must be alleged and proven. Story v. American Central Ins. Co , 61 Mo. App. 539. This allegation was neither expressly or impliedly made in the petition, hence the court erred in admitting evidence, over defendant’s objection, tending to show the value of the property destroyed. The doctrine of aider by verdict can not be invoked in this case. That rule is only applied to support a finding where the petition makes an imperfect statement of a cause of action. It can not supply the lack of essential averments.

The judgment herein will be reversed and the cause remanded.

All concur.

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Concurrence Opinion

Biggs, J.

{concurring). — As this case is to be retried, I think the opinion ought to dispose of all questions presented by the record and briefs.