Farmers Bank v. Manchester Assurance Co., 80 S.W. 299

Farmers Bank v. Manchester Assurance Co.

80 S.W. 299

Mo. Ct. App.

1904

Check Treatment

REYBURN, J.

(аfter stating the facts). — 1. The position of defendant in this case and the theory of the defense presented were that the plaintiffs set forth in their complaint one cause of action and were permitted to recover upon proof of a cause of actiоn entirely different from that pleaded; that the contract averred by plaintiff was especially an absolute promise to pay the sums of money therein specified, while the evidence relied on, namely, the insurance policy, exhibited a conditional contraсt. In the admissions of fact made, the right was reserved of objecting to the admission of any such facts in evidence, and they were subject to the right of defendant to object to any of them when offered in evidence under the pleadings, in the same manner as defendant would have thе right of objection if the facts were testified to on the stand, and the objection to the evidence as the trial progressed was reiterated that it- was inadmissible under the pleadings, as the contract sued on was unconditional as averred; whilst the contract issued by the company was conditional and different, and exceptions were duly saved. One of the foundations relied, on to uphold this contention of a departure in the proof, was that the , policy specified the two individual plaintiffs as the insured, while the slip *123designated in the argument as a “rider,” attached to the policy, made the plaintiff bank payee of the proceeds of the policy insofar as its mortgage indebtedness was unpaid; that an analysis of the transaction between the parties would evince that the defendant obligated itself by insuring the two natural persons plaintiffs; but at their request merely assented, in event of loss, to pay the corporate plaintiff to the extent of any sum then unpaid on its secured note. Appellant further argued, with force and emphasis, that the allegation that defendant, by its policy of insurance, insured plaintiffs is not sustained by the evidence of the actual contract, whereby defendant specifically insured but two of the three plaintiffs, and the third plaintiff was not embraced in the primary contract of insurance as well as no party thereto, nor was it obligated by any of the policy provisions, but merely made payee of fruits of a loss under the policy to the amount of his debt, if the latter, at time of happening of a fire, had not been wholly otherwise paid; and the amended pleading was further dissected, illustrative of inaccurate allegations throughout, in describing the proportion of insurance upon the personalty as one thousand dollars upon their (i. e. the three plaintiffs), property and the like.

The conditions and provisions contained in the so-called rider, are to be considered as constituting pаrt of the policy to the same extent and with like effect as if embodied therein (Crigler v. Ins. Co., 49 Mo. App. 11); and that the policy, although the amount of insurance was apportioned in part to personalty, and in part to realty, created but a single cause of action has been expressly affirmed in the case of Rissler v. Ins. Co., 150 Mo. 366. It is also equally clear that the interest insured was that of the individual plaintiffs and not of the corporation, and the bank was merely appointed at desire of the assured, payee of the fund accruing in event of loss, to the extent of any balance then remaining unpaid on the note, but the bank was collaterally bound by *124the stipulations of the policy, and any action’of the insured -which would have operated to defeat the claim on the policy, was equally available by the company against the bank, whose rights were derivative ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍under its co-plaintiffs. It is, therefore, apparent that the bank and the assured were properly made joint plaintiffs in the action on the policy. Carberry, Admr., v. German Insurance Co., 86 Wis. 323; Williamson v. Michigan Fire & Marine Ins. Co., 86 Wis. 393. While the pleading censured is vulnerable to the charge of inaccuracies, yet surveyed as a whole the relations of the three parties plaintiff sufficiently appear. Nor is the objection tenable that there was a departure from the complaint in the proof, as the evidence introduced by plaintiff, especially thе policy, tended to establish a qualified agreement, whilst the petition averred an absolute contract. The rule of construction applicable to a pleading is varied by the stage of the ease at which the petition, answer or reply may be considered', while the pleading is more rigidly construed before verdict, a relaxed and more favorable rule obtains after verdict, and every reasonable intendment is then brought to aid the pleading assailed. The language of the statute and its interpretation by the courts alike sanction аnd contemplate such principle of interpretation. “But after issue joined, trial and verdict, the court will not construe the petition most strictly against the pleader, but the pleading will be liberally construed, with a view to substantial justice.” Oglesby v. Missouri Pacific Railway Co., 150 Mo. 137; R. S. 1899, sec. 2074. If, however, the appellant deemed the variance between the averments in the petition and the proof tendered material, or if it was misled thereby to its prejudice in maintaining its defense, the statute designated the proper remedy in section 655, and it has been held in a series of cases, that where a variance between the allegations and proof is charged, the objecting party must adopt the course indi*125cated by above section or the objection will not be considered on appeal.

“The sole contention made by the defendant in this case is that the allegata and probata do not correspond, and therefore it is insisted that npon the pleadings and proof the judgment must be for the defendant.

“It has always been the law that the allegata and probata must correspond (1 Greenl., Ev. (16 Ed.), ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍sec. 63, p. 827; Rutledge v. Railroad, 110 Mo. 312). That a party can not declare upon one cause of action and recover upon another, is axiomatic in our law (Cabanne v. Skinker, 56 Mo. 357; Clements v. Yeates, 69 Mo. 623; Reed v. Bott, 100 Mo. 62; Haynes v. Trenton, 108 Mo. 123; Johnson-Brinkman Co. v. Bank, 116 Mo. 558). But it is also equally well settled in our State that timely and appropriate objection must be made to the introduction of the evidence offered on the distinct ground of a variance betweеn the allegata and probata, and that the objecting party must proceed in the manner provided by section 2096, Revised Statutes 1889, otherwise his objection will not be considered (Briggs v. Munchon, 56 Mo. 467; Ely v. Porter, 58 Mo. 158).

“And the affidavit setting forth in what respect a party has been misled is the sole test of the materiality of a discrepancy between the allegata and probata (Turner v. Railroad, 51 Mo. 501; Meyer v. Chambers, 68 Mo. 626; Olmstead v. Smith, 87 Mo. 602). If a party fails to avail himself of section 2096, supra, in the trial court, it is too late to complain in the appellate court (Fisher v. Max, 49 Mo. 404; Brown v. Railroad, 50 Mo. 461; Clements v. Maloney, 55 Mo. 352; Ridenhour v. Railroad, 102 Mo. 270; Mellor v. Railroad, 105 Mo. 455; Bank v. Leyser, 116 Mo. 51).” Fisher & Co. R. E. Co. v. Realty Co., 159 Mo. loc. cit. 566.

The precise question here urged by appellant has been before this ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍court in Heffernan v. Supreme Council American Legion of Honor, 40 Mo. App. 605, where the language of the court was as follows:

*126“The errors assigned on this appeal are that the court erred in admitting evidence of a conditional promise in support of a petition which charged an absolute promise; that the court erred in admitting irrelevant -evidence offered by plaintiff, and further erred in its declarations of law.

“ Touching the first assignment we have to say that the petition, if properly framed, should have charged a conditional promise, as the promise shown by the proof was conditional, hut that the evidence offered was at most a varianсe as distinguished from a failure of proof. ’ ’

The numerous decisions collated in appellant’s brief fail in .application and do not sustain its contention ; the controlling element pervading them is the failure of proof and not any infirmity or defect in pleading, as a few citatiоns will make obvious. ‘ ‘ The trouble does not lie with the pleading, but in the total failure of proof to support the necessary averments of the petition.” Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 137. “We place our conclusions on the broad and substantial ground that the issues were triеd upon an erroneous theory and the finding of facts was without evidence to support it, and we hold that justice and fairness demand that there should be a retrial. ’ ’ Green v. Cole, 127 Mo. 587. In the dissenting opinion in the latter case, expressive of the conclusions of three members of the сourt, is found the following apt and vigorous sentence: ‘£ The rule that renders it unnecessary to allege any more of a contract than the pleader intends to assert, in order to obtain the particular relief he asks, has been supported for many years to be the unquestioned law of Missouri. ’ ’

2. The appellant further insists that the complaint is fatally defective in other respects as a pleading on the policy; particularly in that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍under the stipulations of that evidence of the contract in force, it devolved upon plaintiffs to apprоpriately set out the language or *127substance of tbe policy regarding other insurance, and definitely aver what proportion of the loss was recoverable from defendant; further, that notice of loss is distinct from proof of loss, and the averment of performance of the condition of the policy requiring due presentation of proof of loss must be averred as a condition precedent to recovery. The general rules regarding declarations upon insurance contracts, as well as of evidence, are the same as those governing other contracts, but to a greater degree modified by local legislation; and so much of the policy should be set out in terms or in substance as will exhibit a prima facie right of recovery, and in the respects under discussion especially should be charged the fulfillment of those acts by the insured and the existence of those facts should be alleged upon performance and subsistence of which the insurance money becomes payable, restricted, however, to conditions and facts precedent. Conditions subsequent tо right of recovery, all special matters of defense and all acts to be performed by the insurer in discharge of the liability may be omitted by the plaintiff and left for the insurer to plead in defense. 2 May on Insurance (4 Ed.), secs. 588, 589; 2 Wood on Insurance (2 Ed.), sec. 522. In Missouri by express statutory prоvision, the performance of conditions precedent in a contract may be averred in general terms of performance, and the facts establishing such performance are not required in the first instance to be detailed, but if controverted the facts showing such performance must be established. Section 634. The petition herein, in compliance with the statute, contained averments of due performance of all the conditions of the contract on the part of plaintiffs, and of all duties required of them by the terms of the policy as well as of due notice of the loss; and the admission of the defendant that it did not furnish such blank forms of statements and proofs of loss it desired to have filled' out by the insured, dispensed with the necessity of furnishing any proofs of loss, and *128estopped the appellant from complaining оf failure by the insured to furnish such proofs. R. S. 1899, secs. 7977, 7978. The so-called three-fourths clause has been recognized by this court and its validity is not questioned by respondents nor herein involved. Dolan v. Missouri Town Ins. Co., 88 Mo. App. 666; Bush v. Ins. Co., 85 Mo. App. 155. The primary basis of computation of the liability of defendant in event of total loss was thе face amount of the insurance provided by the policy, the premium charged was for such aggregate of insurance. and the essential elements having been set forth in the complaint, it was not incumbent on plaintiffs that collateral conditions affecting the quantum of damages recoverable under particular conditions should be also mentioned; and any facts existing by which the liability of the insurer was abated from the total amount named in the policy, constituted matters of defense, which plaintiffs were not required to anticipate and negative in their original pleading; but if depended on as matters of defense, should have been properly set forth in the answer of defendant. Nor are such conclusions at war with the authorities appealed to by appellant, gathered from other States.

In Coates v. Ins. Co., 4 Wash. 375; s. c., 30 Pac. 404, by a majority of the сourt it was adjudged that where under the policy, the company agreed to pay a sum not exceeding an amount specified, subject to a provision that the amount to be paid under the policy should not exceed the proportion which the amount insured under the рolicy bore to all the insurance, a complaint silent as to other insurance upon the same property might be defective on demurrer; but such infirmity was waived if not appropriately presented in the trial court and, therefore, could not be raised in the appellate court. A member of the court, however, announcing his concurring opinion fully sustained the decision reached in this case. 30 Pac. 850. The cases cited respectively from Ohio and Indiana, 33 Ohio St. 555, Union Ins. Co. v. *129McGookey, and Hanover Ins. Co. v. Johnson, 57 N. E. 277, are authorities for the proposition that under code sections of those States similar to the Missouri section cited, in actions on poliсies, a general averment that the insured had duly kept and performed'all the conditions imposed on him to he kept under such policies, was a sufficient allegation that notice of loss and proof of loss had been given as required by the policy as conditions precedent.

The case of Cooledge v. Continental Insurance Company, 30 Atl. 798, is controlled by the special circumstances and peculiar facts presented. A careful consideration of this case and thorough research of the authorities in response to the industrious ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and able method of its presentment, have failed to reveal any errors of the trial court entitling appellant to reversal and retrial and the judgment is accordingly affirmed.

Bland, P. J., and Goode, J., concur.