Roberts v. State Ins. Co.

• Decision Date: 03 May 1887
• Citation: 26 Mo.App. 92
• Parties: J. J. ROBERTS ET AL., ADMINISTRATORS, Respondents, v. STATE INSURANCE COMPANY, Appellant.
• Court: Missouri Court of Appeals

26 Mo.App. 92

J. J. ROBERTS ET AL., ADMINISTRATORS, Respondents, v. STATE INSURANCE COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

May 3, 1887

APPEAL from the Howell County Circuit Court, J. R. WOODSIDE, Judge.

Reversed and dismissed.

GOODE & CRAVENS, for the appellant: " Suits against corporations shall be commenced either in the county where the cause of action accrued, or in any county where such corporations shall have, or usually keep, an office or agent for the transaction of their usual and customary business." Rev. Stat., sect. 750; Mikel v Railroad, 54 Mo. 145; Peery v. Harper, 42 Mo 131. Besides, neither party resided in Howell county, which would be fatal to the jurisdiction of the court which tried the case. Brackett v. Brackett, 61 Mo. 221; Hem bree v. Campbell, 8 Mo. 572; Peery v. Harper, 42 Mo. 131. The objection was properly raised by the answer, and could not be waived. Peery v Harper, 42 Mo. 131; Smith v. Simpson, 80 Mo. 639. It is proper to raise the issue of want of jurisdiction of a cause by answer. Hembree v. Campbell, 8 Mo. 572; Stone v. Corbett, 10 Mo. 350. The representations in this case were warranties. Loehner v. Ins. Co., 17 Mo. 249.

LIVINGSTON & PITTS, and L. B. WOODSIDE, for the respondents: The appearance of the defendant, by a plea to the merits, is universally held to be a waiver of jurisdiction over the person. Peter v. Railroad, 59 Mo. 406; Hembree v. Campbell, 8 Mo. 572. The filing of the defendant's original answer, pleading therein solely to the merits, was a waiver of objections to the jurisdiction of the court. Rippstein v. Ins. Co., 57 Mo. 87. If the representation as to title is substantially true, and the liens, or rights, of the insurer are not affected, the policy will be upheld, notwithstanding the representation is not strictly and formally accurate. Allen v. Ins. Co., 5 Gray 384. The appellant put its refusal to pay loss on different and distinct grounds. This waives the necessity of preliminary proof. Flanders on Insurance, sect. 23, p. 593; McComas v. Life Ins. Co., 56 Mo. 575. The insurance company is estopped from setting up defective proofs in this case. Flanders on Insurance, sect. 25, p. 598. This suit was commenced in the circuit court, which is a court of general jurisdiction, and every presumption is in favor of the jurisdiction of the court; and this court should, therefore, presume, with no evidence to the contrary, that the defendant did have, or had usually kept, an office or agent in Howell county, for the transaction of its usual or customary business. Shell v. Leland, 45 Mo. 290; Gibson v. Vaughn, 61 Mo. 418. In courts of inferior jurisdiction the rule is otherwise. Hansberger v. Railroad, 43 Mo. 196; McCloon v. Beattie, 46 Mo. 391.

OPINION

THOMPSON J.

This is an action upon a policy of fire insurance. The answer contains: (1) A general denial. (2) A plea to the jurisdiction. (3) A special defence, alleging false answers to questions in the application for the policy, touching the ownership of the property and incumbrances upon it. (4) An allegation that the plaintiffs had failed to furnish proofs of loss, as required by the terms of the policy. A replication put these special matters in issue. There was a trial before the court, sitting as a jury, and a verdict and judgment for the plaintiffs, from which the defendant appeals.

I. So much of the answer as challenged the jurisdiction of the court was predicated upon the ground, that the plaintiffs were residents of Texas county, Missouri, and that the defendant was a resident of the state of Iowa. This defence was not, as the plaintiffs contend, waived by pleading to the merits. Under the more recent decisions in this state, overruling former ones, such a defence may be set up in the answer, although the same answer, in separate counts, pleads to the merits. Little v. Harrington, 71 Mo. 390; Byler v. Jones, 79 Mo. 261. This part of the answer was put in issue by the reply, in so far as it was not admitted by the allegations of the petition. The petition stated that the defendant was a foreign corporation, created under the laws of the state of Iowa. The summons was served upon an agent of the defendant in the city of St. La. It conclusively appeared, from the evidence, that the cause of action accrued in Texas county. There was no evidence that the defendant had an office or agent for the transaction of its usual and customary business in Howell county, the county to which the summons was made returnable, and in which the case was tried, nor was there any direct evidence to the contrary. It must be presumed, however, that the defendant had no such office or agent in Howell county, from the fact that the summons was sent to the city of St. Louis for service. The statute (Rev. Stat., sect. 750) provides: " Suits against corporations shall be commenced, either in the county where the cause of action accrued, or in any county where such corporations shall have, or usually keep, an office or agent for the transaction of their usual and customary business." Under this statute it has been held that suits may be brought either in the one county or the other, at the option of the plaintiff. Mikel v. Railroad, 54 Mo. 145. So, here, the plaintiffs had their option to sue, either in Texas county, where the cause of action accrued, or in the city of St. Louis, where the defendant, it seems, usually kept an office or agent for the transaction of its usual and customary business; but they could not select any other county in the state, where the defendant did not keep such an office and compel the defendant, no matter at what expense, inconvenience, or prejudice, to litigate with them there. We are, therefore, of opinion that, upon these facts appearing, the court should have sustained the defendant's motion to dismiss the cause for want of jurisdiction; but, as the action may be renewed, we deem it proper to state our impressions upon the merits as they were presented at this trial.

II. The first special defence was supported by uncontradicted evidence, and, if good in point of law, ends the case in favor of the defendant. This paragraph in the answer alleged and the evidence proved, that the application for the insurance, in pursuance of which the policy was issued, was signed " J. P. Roberts & Company, applicant; " that J. P. Roberts & Company were a partnership firm, composed of J. P. Roberts and C. C. Roberts; that the subject of the insurance was a store house, the value of which was stated to be fifteen hundred dollars, upon which the amount of the insurance was to be one thousand dollars. The following questions and answers occur in this application: " " " Question: Are you the sole and undisputed owner of the property to be insured?" " Answer, Yes." " Question: Is it incumbered; if so, to what amount; and is the incumbrance insured?" " Answer, Nothing." The evidence showed that the legal title to the lot on which the building stood was neither in J. P. Roberts nor in C. C. Roberts, but that it was in L. G. Nichols; that J. P. Roberts had purchased it of Nichols, prior to the making of the application for the policy, agreeing to pay one hundred dollars for it; that he had paid twenty-five dollars...