189 N.E. 857 | Ohio Ct. App. | 1933
This is a proceeding in error to reverse a judgment of the Court of Common Pleas of Butler county, rendered in favor of Pearl Robinette, administrator, the plaintiff in that court.
The action is predicated upon Section 9510-4, General Code, covering the method of applying the "insurance money provided for in the contract of insurance" between an insurance company and one against whom judgment has been rendered for injuries or death caused by the vehicle insured.
It is alleged that Pearl Robinette, Jr., was killed by an automobile operated by Anderson Jones, on November 25, 1930, and that:
"On or about the first day of December, 1929, the defendant Anderson Jones, being then the holder of a policy of insurance issued by the defendant The State Automobile Mutual Insurance Company, insuring him against loss by reason of personal injuries or death that might be caused by the operation of the automobile of the said Anderson Jones, entered into an agreement with the defendant, The State Automobile Mutual Insurance Company, whereby, in consideration of the promise of the said Anderson Jones to pay the usual and customary premium therefor upon receipt of a bill or statement of such premium, the defendant The State Automobile Mutual Insurance Company undertook and agreed to and with the said Anderson Jones to issue *24 to him a new policy of insurance of the date of expiration of said policy then in existence, insuring him for the year next ensuing from said date against loss by reason of bodily injury or death caused to any person by reason of the operation of said automobile, and other hazards insured against in the policy of the said Anderson Jones then in existence, at or before the expiration of the said policy of insurance then in existence, without any further application or act upon the part of the said Anderson Jones.
"By virtue of the contract aforesaid, the defendant The State Automobile Mutual Insurance Company insured said Anderson Jones and his said automobile against the hazards aforesaid for a period beginning at the expiration of said previous policy, including the 25th day of November, 1930, but after receiving notice of the death hereinafter mentioned, refused to deliver to the said Anderson Jones the new policy."
It is further alleged that the insurance company "repudiated said contract of insurance" and that the amount of money "provided for in the contract of insurance aforesaid" was $5,000.
The answer of the insurance company was a general denial.
The case was tried to a court and jury. At the close of the evidence of plaintiff, both parties made motions for judgment. The court discharged the jury and rendered judgment for the plaintiff. The insurance company made no reservation in its motion and tendered no evidence.
The first assignment of error is based upon the contention that the petition states no cause of action.
It is conceded by both parties that if the petition merely states a cause of action, predicated upon a contract to issue a policy, or in other words, a contract to make a contract of insurance, the petition is defective. It is conceded as well that a verbal contract of insurance is valid. Hartford Fire Ins. Co.
v. Whitman, *25
It must be admitted that the petition is inartistically drawn. Language could have been employed which would have made the allegation of a contract much clearer. Such criticisms, however, are not equal to a fatal defect in pleading.
Section 11345, General Code, provides: "The allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties."
In the case of Nott v. Johnson,
It must be remembered that no motion to make definite and certain was filed, nor any demurrer, and that the matter comes up first on motion for judgment.
The record shows further that the evidence of plaintiff was offered in support of the contract of insurance, without objection that such evidence was not competent under the allegations of the petition.
In Younger Farmer Co. v. Halliday,
It is apparent that the plaintiff was endeavoring to state that he had a contract of insurance, and produced his proof accordingly. In Bethel v. Woodworth,
"That a defective statement in the petition of the cause of action, is not a cause for reversal of the judgment, *26 if the facts stated in the petition, when well stated constitute a cause of action.
"That the verdict or finding of the court after judgment is always presumed to have been on proof of the alleged facts and necessary circumstances to sustain the truth of such verdict or finding, upon which the judgment has been so rendered."
A particularly good statement of the present attitude of courts toward liberal construction of pleadings is found in Stoutenburg
v. Lybrand,
Again, in the case of Everett v. Waymire,
In McCurdy v. Baughman,
In Valley Ry. Co. v. Lake Erie Iron Co.,
The defendant has a complete remedy against indefinite pleading in Section 11336, General Code. If he fails to avail himself of such rights as are therein conferred, he cannot later complain that a court extends to the pleading the limit of favorable interpretation of the language used.
Plaintiff in error urges that it seasonably advanced its objection to the petition in its motion for an instructed verdict and in its motion for a new trial.
We feel that the fair construction to be drawn from the authorities noted, supra, is that, if a party resorts to the means employed herein, having failed to attack the petition by motion or demurrer, or objection to the evidence, the petition must stand, unless under favorable construction it wholly fails to state a cause of *28 action. Only by applying strict technical rules of construction would the petition in the instant case so fail.
An examination of the evidence shows enough to justify the court in its conclusion that a contract of insurance existed covering the loss insured against in the contract.
In the other assignments of error advanced we find the intervention of no error prejudicial to plaintiff in error which would require a reversal of the judgment. It is therefore affirmed.
Judgment affirmed.
HAMILTON, P.J., and GUERNSEY, J., of the Third Appellate District, sitting by designation, concur.