65 Mo. App. 34 | Mo. Ct. App. | 1896
There is no bill of exceptions in this case, and we are remitted for the review of errors to the record proper. The record proper, as was decided in Bateson v. Clark, 37 Mo. 31, is the petition, summons, and all subsequent pleadings, including the verdict and judgment. This definition is a little too broad in one sense, as it has been frequently decided that a written motion, although in one sense a pleading, is in no sense a part of the record proper (Kohn v. Lucas, 17 Mo. App. 29, 30, and cases cited);
We make these preliminary remarks, because the parties differ in their views as to the contents of the record proper. The ease is in many respects peculiar. The plaintiff sues for a fire loss of $400. His petition states that the policy was taken out by his late wife on a dwelling house, and contained a provision that, in case of her death, the policy should continue in force, and the loss, if any, be payable to the one entitled wider the law to said dwelling house; that his wife died before loss, whereupon he as tenant by the curtesy became entitled to the property insured, and hence to the benefit of the contract of insurance. The answer of the defendant company does not set out the terms of the policy, but among other defenses sets up a defect of parties plaintiff in this, that the plaintiff was not the sole heir of the assured but that the appellants herein claim the property as heirs in law of the assured. The answer prays that they be made parties to the suit. The court thereupon made an order making them parties, to the suit, and they filled their answer. This answer also fails to set out the terms of the policy, but avers that it
The court awarded the fund to the plaintiff. Its-decree is likewise silent as to the terms of the policy. It recites that Mary W. Dix insured the dwelling house-in her lifetime in the sum of $400; that it was destroyed after her death; that the plaintiff was the husband of the assimed and had a curtesy interest in the land, and that the interpleaders áre the sole surviving children of the assured; that the defendant company paid the amount of the loss into court; that the plaintiff' subsequently rebuilt the house at a cost exceeding $400.
The appellants claim that this decree is erroneous-upon the facts conceded by the record. This claim is not tenable. Conceding that the allegations of the-plaintiff’s petition are true, namely, that the loss was-payable to the one entitled under the lato to the dwelling house, he was clearly the person entitled to recover, because he was entitled to said dwelling house as tenant; by the curtesy. There is nothing to show that the allegations of the plaintiff’s petition are untrue, as the-
Nor can the appellants derive any advantage from the fact that their answer was not replied to. The answer set out no new, matter which required a reply. The fact that the appellants are the surviving children of the assured and her heirs, and that no administration has been taken out on the estate of the assured, even if true, does not lead to the conclusion that they are entitled to recover upon the policy. The last part of the answer is not the statement of a fact but a conclusion of law, and hence is not admitted by a failure to reply. Even if the contract of their mother were a personal one on which her representative could proceed for a loss happening after her death, yet the position of the appellants would not be bettered, since they are not, under the allegation of the answer, the personal representatives of the deceased.
The court in its decree seemed to have laid some stress upon the fact that the plaintiff had rebuilt the house at his own expense. This fact was wholly immaterial. The plaintiff as life tenant was under no obligation to restore the house, unless it was destroyed by the negligence of himself or his servants. The fact that he restored the house gave him no better claim on the insurance money, but it has a tendency to show that the appellants as reversioners suffered no loss by the fire, and that, as between them and the plaintiff, he was the only one who suffered substantial loss thereby.
All the judges concurring, the judgment is affirmed.