60 Mo. App. 518 | Mo. Ct. App. | 1895
The plaintiff’s case is based on a policy of insurance, insuring wheat in stacks. The petition asks, in one count, for a reformation of the policy and for a recovery on the policy as reformed. If any proper objection was made to this, it was waived by filing an answer. The admission of any evidence under the petition, was objected to for the reason that
No exception was taken by the defendant to the-action of the court in giving instructions for plaintiff, and none were taken to the action of the court in I'efusing those offered by defendant. This fact will prevent us from noticing many points of objection which were embodied in the instructions given for plaintiff.
The defendant, at the close of plaintiff’s case, asked a demurrer to the testimony, which was refused, and to which action defendant excepted. The refusal was proper. For, according to the concession of the brief in behalf of defendant, plaintiff should have recovered for his interest in the wheat. Whatever sum, therefore, he may have recovered more than his interest (if any), can not now be questioned, since no exception was taken to the action of the court on instructions for plaintiff. Plaintiff being entitled to recover the amount of his interest, as stated by defendant, evidence of the whole loss was properly admitted, and any limitation of what portion could be recovered by plaintiff would arise on instructions. This question was presented in plaintiff’s sixth instruction, wherein the court declared that plaintiff could recover the full amount of the loss; and in this defendant acquiesced, since it did not except.
The same may be said of the question as to plaintiff’s refusal to sign the questions and answers appearing in his examination by defendant, until he could have an opportunity of advising with an attorney. This was embodied in plaintiff’s instruction, numbered 2, and no exception taken. We may add, however, that the instruction was evidently correct, under the ruling in Grigsby v. Insurance Co., 40 Mo. App. 276.
In the state of the record before us, there are but
A complete examination of the record shows the judgment must he affirmed.