Terti v. American Insurance

76 Mo. App. 42 | Mo. Ct. App. | 1898

Gill, J.

This action originated in a justice’s court and is based on an insurance policy covering a stock’ of goods contained in a store room adjoining which a fire occurred and the other building was destroyed. The goods were damaged by smoke from the burned building. Plaintiff had a verdict and judgment below in the sum of $263.75 and defendant appealed.

J"tateCment?°súf-: ficiency of. It is first objected that the petition or complaint filed before the justice of the peace is insufficient. Defendant’s counsel can hardly be serious in this con tention. Since the suit was instituted in a justice’s court the same strictness piea¿lxng is not required as in eases brought in the circuit court. It is enough if the complaint fairly warns the defendant of the nature and extent of plaintiff’s demand, and is sufficiently specific to serve as the basis for a plea of former adjudication. The complaint was amply sufficient for these purposes. It sets out clearly the making of the policy, its date of execution and full tenor and effect, the property covered thereby, and how long to run; also that the property within the time was damaged by fire and how much; that plaintiff performed all the conditions on his part required by said policy; that payment of the loss was demanded and payment refused, etc.

Afi^e&wkey;TSurancei waiver: defense. The second objection to the judgment is also without merit. It was provided in the policy, that “if a fire occurred the insured shall * * * forthwith separate the damaged and undamaged personal property, put it in the best possible -, , , , . rt ,, order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon.” It is now objected that this was not done, and for this reason plaintiff can not recover. In answer to this it is sufficient to say that no such defense was presented to the circuit court; the questions litigated were altogether of a different nature. Several instructions were asked by defendant’s counsel at the trial, but no such reason as this was offered to avoid a liability. If such a defense had been interposed then there was uncontradicted evidence to prove that the separation of the goods and making up an inventory was waived by the defendant’s adjuster. Among other things it was shown that immediately after the fire defendant’s adjuster instructed the plaintiff to go ahead and sell the goods in the usual course. This of itself was such conduct as to induce the belief that defendant waived the provision calling for a separation of the goods and the making an inventory.

This provision of the policy then being waived is gone forever. Once waived it could not be revived without the consent of both parties. Porter v. Ins. Co., 62 Mo. App. 520.

Judgment affirmed.

All concur,