Robinson v. Metropolitan Life Insurance, 105 Mo. App. 567

105 Mo. App. 567 | Mo. Ct. App. | 1904

REYBURN, J.

The only question urged by appellant is the sufficiency of the statement of plaintiff’s cause of action as follows:

“Plaintiff for cause of action states that defendant is a corporation incorporated under the laws of the State of New York and doing business and having an office in the City of St. Louis, Missouri.

“Plaintiff further states that she was, up to the time of his death, the wife of one John P. Robinson; that defendant on the 15th day of November, 1901, in consideration of payment by said John P. Robinson, to defendant of a premium of $22.21 semi-annually during his life, and not to exceed twenty years, executed and delivered to said John P. Robinson, its policy of insurance in writing whereby it insured his life in the sum of one thousand dollars for the benefit of plaintiff. The said policy is herewith filed and marked Exhibit A.

“Plaintiff further states that said John P. Robinson died at the city of St. Louis, on the 11th day of April, 1902, and up to the time of his death all the premiums accrued and due upon policy were duly paid, and that the said Robinson in all respects complied with the conditions and provisions of aforesaid policy, that plaintiff immediately upon the death of said John P. Robinson, notified defendant of said fact, and did make proofs of death to defendant, in the manner and to the extent required, by blanks furnished by said defendant, which proofs were approved by defendant. That plaintiff has duly demanded from defendant payment of the sum of one thousand dollars, the amount of said policy, but the same has not been paid by defendant nor has any part thereof been paid and defendant is now justly indebted to plaintiff in said one thousand dollars, together with interest from the 11th day of April, 1902, and costs for which plaintiff prays judgment. ’ ’

The answer, upon which trial was had, admitted the corporate existence of defendant, denied, in general terms, all other averments of the petition, and then proceeded to plead specifically and at length affirmative defenses based upon charges of misrepresentations by the insured composing warranties, in consideration of which the policy was issued, and a tender of the amount received as the premium upon the policy was made. The affirmative matter of the answer was traversed by a general denial as plaintiff’s reply; the answer is not presented in detail as no further error is complained of by appellant as occurring at the trial in which, under the instructions of the court, the jury found a verdict for plaintiff, and from judgment thereon this appeal is taken.

It is argued industriously and with vigor, that the above petition of plaintiff does not state a cause of action and does not set forth the constitutive facts comprehending plaintiff’s right of action and alleged mere conclusions of law. This objection was preserved by objection to introduction of any evidence at the beginning of trial for the reason that the petition stated no cause of action, and by motion in arrest assigning, among others, the same ground. The question of the sufficiency of a petition when raised by demurrer thereto, differs materially from the question of its adequacy after answer, by way of objection to admission of any testimony, and in latter event, however informal, if the averments set forth defectively a cause of action, the objection is not to be sustained. Young v. Shinkle etc., 103 Mo. 324. This rule is well settled in this State that a cause of action defectively stated is good after verdict, and can not be taken advantage of at the trial by objecting to the admission of evidence; where the petition wholly fails to state any cause of action by omission of an essential averment, which by fair and reasonable intendment is not implied in the whole language employed in the petition, such objection to introduction of any evidence may be made in nature of an oral demurrer. Jones v. Philadelphia etc., 78 Mo. App. 296. If, however, facts requisite to constitute a cause of action are to be inferred from the petition taken in its entirety, though defective in some of its averments, it should be held ample after verdict, upon the theory that plaintiff will be presumed to have proven at the trial the facts inadequately pleaded. At its worst, the petition here exhibits a good cause of action imperfectly set forth, not a cause of action substantially defective, and the petition in the severest aspect is but formally, not radically defective, and it must be upheld after verdict. Seckinger v. Philbert, etc. Co., 129 Mo. 590; Salmon Palls Bank v. Leyser, 116 Mo. 51; Hurst v. City of Ash Grove, 96 Mo. 168; Buck v. Peoples, etc., Co., 46 Mo. App. 555; Sawyer v. Wabash Co., 156 Mo. 468. Measured by liberal rules of construction now prevailing, as well as by the express terms of the positive statute, there is no room left for doubting the sufficiency of this petition to support the verdict. R. S. 1899, sec. 629, 672.

Judgment affirmed.

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