Ritchey v. Home Insurance

98 Mo. App. 115 | Mo. Ct. App. | 1903

REYBURN, J.

The form of answer permitted under the code is set forth in section 604 of the Revised Statutes, which provides what the answer may contain in the following language:

“The answer of the defendant shall contain: First, a general or specific denial of each material allegation of the petition controverted by the defendant, or any knowledge or information, thereof sufficient to form a belief; second, a statement of any new matter constituting a defense or counterclaim in ordinary and concise language without repetition. ’ ’

Section 607 provides that where the answer contains new matter, the plaintiff shall reply to such new matter, denying generally or specifically the allegations controverted by him, or any knowledge or information thereof sufficient to form a belief, and may allege in ordinary and concise language, without repetition, any new matter not inconsisteht with the petition, constituting a defense to the new matter.

Section 609 provides that the reply shall be governed by the rules prescribed in relation to answers.

Under the foregoing sections, it will be observed that a pleading, either answer or reply, may contain a general or specific denial, that is, such pleading may traverse the allegations of the opposite pleading in whole or in part, but a fair and just construction of these sections requires that the pleader should make it clearly appear, what portions of the pleading to which answer or reply is made is intended to be controverted and put in issue, and such has been the construction placed upon the sections above quoted providing for the form of the answer or reply. The pleading filed by defendant in this case admits the execution of the policy sued on, and sets forth at length affirmative defenses relied on to defeat the action, concluding with the language, “furtiier answering defendant denies each and every allegation, matter, fact and thing in the petition alleged hot herein expressly admitted, and having fully answered, asks to go hence with its costs.” The exact language adopted in the concluding paragraph of this answer, or language similar in substance, whether contained in an answer or reply, has been continuously condemned as defective and frequently stamped with disapproval by the appellate courts of this State.

In Snyder v. Free, 114 Mo. 360, the answer consisted of a general denial of every allegation of the petition, “except that which may be hereinafter expressly admitted.” And in commenting upon such mode of denial, Judge Sherwood, says:

“The central idea of code pleading is that an answer should not be evasive, but should meet the allegations of the petition fairly and squarely, thus presenting sharply-defined issues for the triers of the facts to pass upon. R. S. 1889, sec. 2049. On a former occasion this court denounced the method here employed as a ‘vicious method of pleading,’ and this was an apt characterization of such a faulty way of pleading. It was never the design of the code that a party plaintiff should have to carefully sift each denial of the answer and to carefully compare it with each paragraph of the petition in order to see what is admitted and what is denied. Such denials may be general or they may be special, but in either event the issue must be sharply defined, and .not left to surmise or conjecture.”

In Long v. Long, 79 Mo. 644, the reply was in the. words: “Now comes plaintiff, and for reply says he denies each and every allegation in said answer not herein admitted, or otherwise pleaded to.” In commenting on this form, Commissioner Phillips says:

“1. The reply in this case is bad pleading and ought to be discouraged. The reply to new matter in the answer is similar to the answer to the petition, and it may contain a general or special denial. ' Vansant, Plead., 408, declares that the ‘ code allows the defendant to elect whether he will answer by a general or special denial, and having elected he is bound by it. He can not answer in both ways.’ Dennison v. Dennison, 9 How. Pr. 247, is cited in support. We are not prepared to say that both modes of pleading may not be employed in the answer or replication. But we do not hesitate to hold that when both are employed the denials ought to be so framed as to leave no doubt in the mind of the court and the adverse party as to what is denied and what is admitted. This course not only sharpens the issues, but it aids in the preparation of evidence and lessens expenses in bringing witnesses to meet matters not designed to be controverted at the trial. This reply says: ‘Plaintiff denies each and every allegation not herein admitted or otherwise pleaded to. ’ Then what is admitted or otherwise pleaded to ? To determine this . the opposing counsel and the court must go through the pleading analytically, step by step, to discover what perchance may be admitted or denied. ’ ’

In Walker v. Insurance Co., 62 Mo. App. 209, the replication was a denial “of each and every allegation therein contained, except as hereinafter admitted.” The motion of defendant to require the plaintiff to make his reply definite and certain by stating what allegations of the answer were admitted and what denied, was overruled by the trial court, which the appellate court pronounces error, stating that the trial court should have sustained the motion so as to have compelled the plaintiff to make certain what he denied and what he admitted.

In .like manner the form of general denial lifuited to “each and every material allegation” has been held an improper traverse as not being in conformity to the statute, or clearly showing what allegations are meant to be put in issue. Edmonson v. Phillips, 73 Mo. 57; Fry v. Railroad Co., 73 Mo. 123; Collins’Admr. v. Trotter, 81 Mo. 275.

Section 621 of the code, which provides as follows:

“When a petition, answer or reply shall he adjudged insufficient in whole or in part upon demurrer, or the whole or some part thereof stricken out on motion, the party may file a further like pleading within such time as the court shall direct; and in default thereof the court shall proceed with the cause in the same manner as if no such original pleading had been filed,” was construed in the case of Munford v. Keet, 154 Mo. 36, certified from this court. The answer therein was attacked by a motion to strike out a part of the defenses sought to-be interposed, which was sustained, but leaving unchallenged a good defense to- plaintiff’s cause of action, even after the court had stricken out the part embraced in the motion. The trial court therein after ruling upon the motion, asked defendant’s attorneys whether they desired to file an amended answer, or stand upon the answer so filed, and in reply these attorneys informed the court that they desired to proceed to trial on the part of the answer not so stricken out (saving exceptions to the action of the court in striking out part of the answer) which the court refused to permit, and held that the defendant must file a new answer, omitting the matter stricken out of the answer, or on failure- so to do a default would be entered against him. Defendant refused to file a new answer, and the court entered an interlocutory judgment of default against him, and afterwards tried the case ex parte, refusing to allow defendant to participate in any way in the trial. The Supreme Court, reviewing this action of the lower court, held that the trial court erred in entering judgment by default against the defendant and in refusing to allow him to participate in the trial. In the case under consideration the motion of plaintiff did not attack the whole answer of defendant, but was restricted to that portion of its answer which presented the obscure and defective denial of plaintiff’s cause of action, and the ruling of the court in sustaining such motion affected only the same paragraph of the answer and adjudged only that part insufficient, and after the court had passed upon the motion, defendant’s answer remained in the same condition as if no attempted denial had originally been contained therein, but only affirmative defenses had been pleaded, and the cause should have proceeded in the same manner as if that portion thrown out by the ruling of the court had never been incorporated in the answer of defendant. The proper course of plaintiff after defendant insurance company had refused to plead further, was to file the proper pleading to the affirmative defenses contained in defendant’s answer, join issue thereon, and let the case proceed to hearing on the merits. This course was not attempted, and the cause not being ripe for trial, the issues not having1 been framed, without adjudging the defendant in default the court proceeded ex parte to hear evidence on plaintiff’s petition and rendered final judgment against defendant insurance company. Under the authority of Munford v. Keet, supra, this constituted error, for which the case is reversed and remanded, to be proceeded with in accordance herewith, and it is so ordered.

Blancl, P. J., and Goode, J., concur.