139 Mo. App. 570 | Mo. Ct. App. | 1909
This is a suit on a policy of fire insurance. Defendant answered, but on motion of plaintiff, the court struck out the answer. Defendant refused to plead further and stood on its answer. The court heard the evidence introduced by plaintiff and rendered judgment for him in accordance with the prayer of the petition. Defendant appealed to the Supreme Court but that tribunal on motion transferred the cause here.
Plaintiff alleged in the petition that defendant issued the policy in suit September 17, 1899, to G. C. Eichardson; that the insurance was for a term of five years from that date; that in September, 1900, plaintiff purchased the property insured from Eichardson and with the consent of defendant received a transfer of the policy duly executed and that the dwelling-house insured was destroyed by fire in February, 1904. There are' other allegations in the petition not material to our present inquiry. The sufficiency of the pleading is not attacked. Defendant filed the following answer and “cross-bill in equity.”
“1. For answer to the petition of said plaintiff and for a cross-bill in equity, this defendant by its attorneys, admits that it is now and was at all the times mentioned in the petition a corporation duly organized, created and existing under the laws of the State of
‘ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now. has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy; or if the subject of insurance be a manufacturing establishment and it be operated in whole or in part at night later than ten o’clock, or if it cease to be operated for more than ten consecutive days; or if the hazard be increased by any means within the control or knowledge of the insured; or if mechanics be employed in building, altering, or repairing the within described premises for more than fifteen days at any one time; or if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee-simple; or if the subject of insurance be personal property and be or become encumbered by a chattel mortgage; or if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed; or if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process, or judg
The said policy and contract of insurance, as defendant is informed and verily believes, has been heretofore destroyed without the consent or procurement of this defendant, and for that reason cannot be produced by this defendant. And this defendant has never issued unto said G-. C. Eichardson or said plaintiff any other policy or contract of insurance or ever given its consent thereto than the one mentioned herein the term of which commenced September 17, 1898, and expired September 17,1903. That it was necessary and essential to said defendant’s defense of this action that the terms ,and conditions of said policy and contract of insurance as herein stated, be established and decreed by this court, sitting as a court of equity; and, without the terms of said document above recited, this defendant has not evidence sufficient to maintain its just and lawful defense at law or prove the contents of said document in a sufficiently convincing manner, as justice and equity demand; and that this defendant is entitled to
Defendant avers that plaintiff at the time of the fire, alleged in the petition, was well aware that the policy and contract of insurance Avhich defendant had issued upon said property had expired at noon of September 17, 1903, and plaintiff knoAvs and well knew at the time this suit was brought that said policy expired on the last-named date, nevertheless, plaintiff, prior to bringing this suit, conceived the fraudulent purpose and design of pretending that said policy by its terms was in force to September 17, 1904, and, in execution of said fraudulent purpose and design, plaintiff brought this action and made the statements contained in his petition herein in furtherance of said fraudulent purpose and design and in order to perpetrate a fraud upon this defendant.
Defendant further avers that in truth and in fact the only policy which insured the property mentioned in the plaintiff’s petition expired September 17, 1903, according to the terms thereof, and in endeavoring and attempting to maintain the claim alleged in plaintiff’s petition, the said plaintiff seeks to impose upon this court, as a court of law, wherefore this defendant being
And tbis court having lawful jurisdiction as a court of equity in tbe premises to establish tbe terms of said policy and to cause discovery thereof to be made, has also jurisdiction to proceed to do full justice in tbe premises, and defendant being remediless, otherwise, in tbe circumstances, by reason of tbe fraud of plaintiff, as aforesaid, and of tbe destruction of said instrument, and of tbe laches of plaintiff in tbe circumstances aforesaid, now, therefore, defendant prays tbis court to enjoin and restrain plaintiff, from further prosecuting bis said action at law on account of tbe fraud aforesaid, and tbis defendant invokes tbe aid and jurisdiction of tbis court as a court of equity to establish and declare tbe terms of said policy to be as hereinbefore set forth, and especially to decree and declare tbe terms of said policy and contract of insurance to be in force from tbe term, commencing September 17, 1898, at noon, and expiring September 17, 1903, at noon, and not otherwise. Tbis defendant avers that it has no adequate remedy at law to obtain tbe relief wbicb it prays or to obtain
Wherefore this defendant prays this court to decree, establish and adjudge the terms of said policy and contract of insurance to be, in tenor, effect and substance, that said policy and contract of insurance was to endure and continue from noon of September 17, 1898, to noon of September 17, 1903, and not otherwise; and that said' policy contained the paragraph hereinbefore quoted, -concerning the existence of encumbrances and the increased hazard thereby occasioned, and that the plaintiff be perpetually enjoined and restrained from proceeding with his action founded on his petition herein, and from further pretending or claiming that said policy was in force after September 17, 1903, at noon; and that this defendant may have such other and further relief in the premises as to the court may seem meet and may be in accordance with the principles and practice of courts of equity in that regard, and for its costs herein expended.
2. For further answer and defense this defendant, by its attorneys (admitting as' hereinbefore stated that it is and was at all the times mentioned in the petition a corporation) avers that plaintiff ought not to recover in this action because the plaintiff was guilty of laches and negligence and failed to exercise reasonable and ordinary care of the policy of insurance issued by defendant, as hereinbefore stated, on or about September 17, 1898; and this defendant expressly avers that plaintiff was guilty of want of ordinary and reasonable care and caution in the custody of said policy; and that in consequence of said negligence and want of ordinary care on the'part of plaintiff said policy was destroyed by fire and defendant thereby was deprived of its use as a document and as a defense to this action.
Wherefore this defendant prays judgment that it may be discharged hence without day.
4. Defendant denies that on the 17th day of September, 1899, or at any time heretofore, it made or executed a contract or policy of insurance in the terms or to the purport stated in the petition herein to G. C. Richardson, or to plaintiff; and defendant denies that it consented to any assignment to plaintiff of any policy of insurance in the terms or to the purport stated in said petition, in September, 1900, or at any time heretofore.
5. Defendant further denies generally any knowledge or information sufficient to form a belief of the other allegations of the petition not hereinbefore admitted, and not herein specifically denied.”
The answer was signed by the attorneys and verified by affidavit.
The reasons assigned in plaintiff’s motion to strike out this answer thus are stated: “1st: Said answer is not responsive'to the issues. 2d. Said answer neither confesses nor avoids. 3d. Because the new matter constituted no defense. 4th. Because said answer is vague, uncertain and tenders no certain issues for trial. 5th. Said answer is not a proper defense.”
Point is made by defendant that this motion should not have been considered for the reason that it was filed after plaintiff had filed his reply and without leave
The equitable relief sought by defendant is founded on the allegations that the only policy issued by defendant to Richardson expired September 17, 1903, a date before the fire; that plaintiff negligently suffered the policy to be destroyed and then fraudulently conceived the purpose of bringing and maintaining this suit on the false theory that the policy was issued a year later and, therefore, was in force when the loss occurred.
These facts afford no ground for the interference of a court of equity. To maintain his action at law, it devolved on plaintiff to plead and prove the existence of the contract on which he based his right to recover. As the instrument itself was destroyed, proof of its contents could be made by parol. Defendant could meet such evidence by evidence to the effect that the policy sued on never had existed and- that the one issued by defendant had expired before the date of the loss. Such evidence being in disproof of the cause of action pleaded could he introduced under a general denial. If defendant could succeed in convincing the triers of fact that the policy pleaded in the petition never existed, certainly the motives of plaintiff in attempting to recover in an action so devoid of merit were wholly immaterial. The all-important fact was whether the policy pleaded was in force when the loss occurred. This was an issue pertaining to an action at law and as we have said was one to be raised by a general traverse.
The answer is not good as a plea of confession and avoidance. The affirmative defense interposed in the third paragraph presents no issue material to this case since it is predicated on the terms and conditions of a policy alleged to have been issued September 17, 1898, an entirely different contract from that pleaded in the petition. With this defense eliminated, the new matter alleged constitutes no affirmative defense. If true, it merely goes to disprove the cause pleaded, and, as we have said, could be proved under a general or special denial.
Is the pleading good as a general traverse? The answer to this question depends on the construction that should be given the fourth and fifth paragraphs. The latter paragraph means nothing and is too evasive to raise an issue. Its denial of knowledge, information, etc., is restricted to allegations of the petition “not hereinbefore admitted and not herein specifically denied.” An answer to be good as a traverse must clearly and unequivocally deny the existence of one or more of the facts elemental to the cause of action. It must not leave the denial dependent on inference or conclusion either of law or fact and must not require the plaintiff and the court to resort to an analysis of the pleading to ascertain what is denied and what is admitted. [Dezell v. Fidelity & Casualty Co., 176 Mo. 1. c. 278; Young v. Schofield 132 Mo. 650; Ritchey v. Insurance Co., 98 Mo. App. 115; Snyder v. Free, 114 Mo. 360; Long v. Long, 79 Mo. 644.]
In our first view of the fourth paragraph, we inclined to the opinion that it likewise should be condemned on the ground that it 'did not clearly and unconditionally deny the facts constitutive of the cause of action pleaded in the petition. The denial that defendant issued the policy “in the terms or to the purport stated in the petition” seems suggestive of the statement of a mere conclusion of the pleader — of an averment of nothing more than a negative pregnant. But a subsequent examination of the cases in this State has convinced us that this paragraph should be construed as embracing a specific denial of the execution by defendant of the policy in suit. The doctrine of a negative pregnant is not recognized in this State. [Bank v. Richards, 6 Mo. App. 454; 74 Mo. 77.] In this case it is said: “The denial of a complex statement in the very language in which it is made is not careful pleading; but where the purpose of the pleader is clear, it is sufficient to put in issue all the material facts in the allegation denied, as if each were disjunctively stated and denied, unless a case is presented in which the answer must be fairly regarded as ambiguous.”
To the same effect is the case of Bank v. Hogan, 47 Mo. 472. There the petition alleged that the company issued its draft signed by its secretary. The answer denied “that the company by its draft, in writing, signed by its secrtary,” executed the obligation. Held “the denial is inartistic but sufficient under our system of pleading. (Citing cases.) The petition avers that the draft was drawn by the insurance company. The answer denies it. That is the substance of the averments. The rest is circumstantial.”
The denial in the case in hand certainly is inartistic, but we conclude that it'expresses unequivocally the purpose of the pleader to deny the execution of the policy in suit and since it is verified by affidavit, it must be held to raise an issue of the execution of the policy. The fourth paragraph should not have been stricken out. The remainder of the pleading is bad. The defense
The judgment is reversed and the cause remanded.