Cooper v. American Central Insurance Co.

• Decision Date: 06 December 1909
• Citation: 123 S.W. 497,139 Mo.App. 570
• Parties: ISAAC N. COOPER, Respondent, v. AMERICAN CENTRAL INSURANCE COMPANY, Appellant
• Court: Kansas Court of Appeals

123 S.W. 497

139 Mo.App. 570

ISAAC N. COOPER, Respondent, v. AMERICAN CENTRAL INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 6, 1909

Appeal from the Gasconade Circuit Court.--Hon. R. S. Ryors, Judge.

Reversed and remanded.

Barclay & Fauntleroy, August Meyer and J. W. Booth for appellant.

(1) The plaintiff's motion to strike out (the answer) confesses the facts (stated in said answer), and the only question therefore, is, Do the facts stated (therein), constitute a defense? Wonderly v. Lafayette Co., 150 Mo. 647; Mfg. Co. v. Dawson, 77 Mo.App. 128. (2) The court erred in sustaining the motion of the plaintiff to strike out the answer of the defendant. (3) The motion to strike out the answer admitted all the facts therein stated. (4) The answer expressly stated that the company had never issued "any other policy or contract of insurance, or ever given its consent thereto, than the one mentioned herein (and which was stated in said answer), the term of which commenced September 17, 1898, and expired September 17, 1903." This, of itself, was a denial that any such contract, as stated in the answer was ever made. If it had expired in 1903, it could not be in force in "February, 1904." (5) The answer contains the following defense: "Defendant further denies generally any knowledge or information sufficient to form a belief of the other allegations of the petition not hereinbefore admitted, and not herein specifically denied." This was, of itself, a denial of all the material allegations of the petition, and made it improper for the court to grant the motion complained of. (6) The court erred in not granting the motion of defendant, to set aside its findings and judgment in said cause, and granting defendant a new trial. (7) The court erred by striking out the answer, in question, of defendant, for the reason that it deprived said defendant of the right to the equitable relief which is prayed for in said answer, to re-establish and declare the terms of said policy (which plaintiff alleges was destroyed, but which defendant denied ever existed), which it is alleged in the petition, was destroyed by fire. Freis v Griffin, 17 So. 66, 35 Fla. 212.

Breuer & Hensley for respondent.

(1) The denials set forth by appellant in its answer constitute neither the special nor general denial required by statute, and does not make certain and definite issues. Dezell v. Fidelity & Casualty Co., 176 Mo. 253; Young v. Schofield, 132 Mo. 650; Ritchey v. Insurance Co., 98 Mo.App. 115; Snyder v. Free, 114 Mo. 360; Long v. Long, 79 Mo. 644. The two closing paragraphs of appellant's answer falls within this rule, and is supported by the above authorities and we think was properly stricken out. (2) Appellant's cross-bill contains the following statement: "And this defendant has never issued unto said Richardson or said plaintiff any other policy or contract of insurance, or ever given its consent thereto, than the one mentioned herein the term of which commenced September 17, 1898, and expired September 17, 1903." This is no denial of the allegations of the petition that the policy sued on was issued, but only a counter statement of facts inconsistent with those of the petition. State ex rel. v. Adams, 161 Mo. 349. (3) The new matter alleged by appellant for crossbill is evasive and neither denies nor confesses and avoids and was properly stricken out. Miller v. Railroad, 62 Mo.App. 253; Gas Light Co. v. St. Louis, 11 Mo.App. 55. (4) The cross-bill and affirmative defense is nothing more than a statement by defendant for plaintiff, of a different cause of action than that stated by plaintiff in his petition, and then an avoidance of the cause of action so stated by defendant, and there was no error in striking it out. Gas Light Co. v. St. Louis, 111 Mo.App. 55. (5) Appellant does not state facts in its cross-bill to give the court equitable jurisdiction. The discovery that appellant seems to thing it is entitled to have been abolished ever since our statute was passed, giving either party to a cause the right to compel the other party to testify as a witness; appellants' remedy at law is full adequate and complete, and there is no merit in the cross-bill.

OPINION

JOHNSON, J.

This is a suit on a policy of fire insurance. Defendant answered, but on motion of plaintiff, the court struck out the answer. Defendant refused to plead further and stood on its answer. The court heard the evidence introduced by plaintiff and rendered judgment for him in accordance with the prayer of the petition. Defendant appealed to the Supreme Court but that tribunal on motion transferred the cause here.

Plaintiff alleged in the petition that defendant issued the policy in suit September 17, 1899, to G. C. Richardson; that the insurance was for a term of five years from that date; that in September, 1900, plaintiff purchased the property insured from Richardson and with the consent of defendant received a transfer of the policy duly executed and that the dwelling-house insured was destroyed by fire in February, 1904. There are other allegations in the petition not material to our present inquiry. The sufficiency of the pleading is not attacked. Defendant filed the following answer and "cross-bill in equity."

"1. For answer to the petition of said plaintiff and for a cross-bill in equity, this defendant by its attorneys, admits that it is now and was at all the times mentioned in the petition a corporation duly organized, created and existing under the laws of the State of Missouri, and defendant further alleges that on or about the 17th day of September, 1898, defendant did duly make, execute and deliver its policy and contract of insurance to G. C. Richardson, whereby it insured said G. C. Richardson against all direct loss or damage by fire to the property mentioned in the petition, for the term (stated in said policy) of five years from September 17, 1898, at noon, to September 17, 1903, at noon, and that said policy and contract of insurance was thereafter duly assigned by said Richardson to the plaintiff, and that said alleged policy and contract of insurance contained the following clause and provision:

'This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy; or if the subject of insurance be a manufacturing establishment and it be operated in whole or in part at night later than ten o'clock, or if it cease to be operated for more than ten consecutive days; or if the hazard be increased by any means within the control or knowledge of the insured; or if mechanics be employed in building, altering, or repairing the within described premises for more than fifteen days at any one time; or if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee-simple; or if the subject of insurance be personal property and be or become encumbered by a chattel mortgage; or if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed; or if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process, or judgment or by voluntary act of the insured, or otherwise; or if this policy be assigned before a loss; or, if illuminating gas or vapor be generated in the described building (or adjacent thereto) for use therein or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above described premises, benzine, benzole, dynamite, ether, fireworks, gasoline, greek fire, gunpowder exceeding twenty-five pounds in quantity, naphtha, nitro-glycerine or other explosives, phosphorus, or petroleum or any of its products of greater inflammability than kerosene oil of the United States standard (which last may be used for lights and kept for sale according to law but in quantities not exceeding five barrels, provided it be drawn and lamps filled by daylight or at a distance not less than ten feet from artificial light); or if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.'

The said policy and contract of insurance, as defendant is informed and verily believes, has been heretofore destroyed without the consent or procurement of this defendant, and for that reason cannot be produced by this defendant. And this defendant has never issued unto said G. C. Richardson or said plaintiff any other policy or contract of insurance or ever given its consent thereto than the one mentioned herein the term of which commenced September 17, 1898, and expired September 17, 1903. That it was necessary and essential to said defendant's defense of this action that the terms and conditions of said policy and contract of insurance as herein stated, be established and decreed by this court sitting as a court of equity; and, without the terms of said document above recited, this defendant has not evidence sufficient to maintain its just and lawful defense at law or prove the contents of said document in a sufficiently convincing manner, as justice and equity demand; and that this defendant is entitled to a discovery and a decree ascertaining and declaring the terms of said document to be as hereinbefore recited in order that justice and equity...