137 Mo. App. 247 | Mo. Ct. App. | 1909
— This is a suit on á policy of fire insurance issued to the plaintiff by the defendant, a town mutual fire insurance company. Plaintiff recovered and defendant appeals.
It is clear the sheriff’s return failed to show the court had acquired jurisdiction of the person of the defendant. The statute required service to be had “upon the president or secretary or other chief officer in charge of the principal office of such compány.” Of course service upon Secretary Daugherty was sufficient, had the same been had while he was in charge of defendant’s principal office. But the return recites that it was had upon, Daugherty, the defendant’s secretary, in charge of defendant’s usual business office. The usual business office of the defendant in St. Louis may be a place other than its principal business office. The statute requires ser
The evidence given at the trial is not before us. No bill of exceptions was taken in the case. The defendant has presented for review on appeal, the record proper only. The petition avers under the policy the amount of the loss shall be due and payable sixty days after the “ascertainment” thereof. It is nowhere pointedly averred in the petition, in that particular language at least, that “ascertainment” of the loss was ever made. ■ In view of this, fact, the sufficiency of the petition to support the judgment given thereon, is challenged after verdict. The principal criticism levelled against its sufficiency in respect of stating a cause of action, is that the plaintiff, having alleged that the amount of the loss was due him by the provisions of the policy sixty days after its ascertainment, it devolved upon him to aver as well that the loss had in fact been ascertained more than sixty days before the institution of the suit; otherwise it appears the suit is prematurely brought, for the reason the amount sued for was not then due. Had this question been haised by demurrer to the petition, it might possibly have been well taken, for it certainly devolved upon the plaintiff .to state facts therein from which it appeared an ascertainment of the loss had been had sixty days prior to the institution of the suit on the policy. [Carberry v. German Ins. Co., 51 Wis. 605.] Be this as it may, we are now considering the sufficiency of the petition after verdict, and if it appears therein by reasonable implication, upon a fair construction of ' its averments, that an ascertainment was in fact had sixty days or more before the suit was instituted, it is sufficient, for under such circumstances, all intendments and implications which may arise from a fair construction of the petition, are to be allowed in aid of its sufficiency to support the judgment. Our statute of jeofail (sec. 672, R. S. 1899, sec. 672, Mo. Ann. St. 1906) provides, among other things, tha,t no judgment shall be reversed
The policy itself is not before us. As stated, the evidence was not preserved in a bill of exceptions. None of the provisions of the policy touching the matter of ascertainment or any other matter, so far as that is concerned, are incorporated in haee verba in the petition or annexed thereto. So it is we are unable to determine therefrom what particular significance the “ascertainment” referred to has in the context employed in the policy. To deal, then, with the word “ascertainment” as it appears in the petition only. The averment is that the loss was payable sixty days after ascertainment. “To ascertain a matter is to make a thing certain to the mind; to free from obscurity, doubt or change; to make sure of; to fix; to determine.” [Webster’s Diet.] When, as here, the matter is not illuminated by the context of the policy touching the matter of ascertainment, we understand the word as thus employed in the petition to signify that the loss was payable sixty days after its character, amount and extent had been ascertained by the plaintiff; that is, after plaintiff had determined the character, amount and extent of the loss. Upon his determination of the character, amount and extent of the loss, plaintiff had ascertained the same within the
The petition avers that the fire which destroyed the property occurred on the 28th day of April. It is also averred therein that on the 20th day of May thereafter, plaintiff gave due notice thereof to the defendant. On these facts, it is insisted that it affirmatively appears on the face of the petition the plaintiff failed to give defendant notice of the loss within a reasonable time, and therefore ought not to be permitted to recover. Authorities are cited to the proposition that where it appears conclusively that a matter which should be done within a reasonable time had been neglected until an unreasonable time had elapsed, the court may declare
The judgment should be affirmed. It is so ordered.