Cox v. American Ins. Co.

• Decision Date: 17 May 1909
• Citation: 137 Mo. App. 40,119 S.W. 476
• Parties: COX v. AMERICAN INS. CO. OF NEWARK, N. J.
• Court: Missouri Court of Appeals

119 S.W. 476

137 Mo. App. 40

COX v. AMERICAN INS. CO. OF NEWARK, N. J.

Kansas City Court of Appeals. Missouri.

May 17, 1909.

1. PARTIES (§ 69)—MISNOMER.

In an action against the American Insurance Company of Newark, N. J., that the name "Newark" was in the petition and summons improperly divided into two words, so as to read "New Ark," was immaterial.

2. APPEAL AND ERROR (§ 914) — PRESUMPTIONS— PROCESS—RETURN.

A correction of an obvious clerical error in a letter in the name of defendant appearing on a return of service of summons would be on appeal presumed to have been made before the return was delivered by the officer, in the absence of evidence to the contrary.

3. PROCESS (§ 153)—RETURN.

Rev. St. 1899, § 7991 (Ann. St. 1906, p. 3799), requires foreign insurance companies to file with the superintendent of the insurance department of the state powers of attorney authorizing him to receive service of process, and expressly provides that service made on him shall be deemed personal service on the company. Held that, as such service was personal and not constructive, where, in an action against the A. Insurance Company of Newark, N. J., defendant's name was correctly shown on the face of the summons and in the petition, and the return recited that the writ was served on the "within named defendant," that the name "New Jersey" was omitted from the return was a harmless irregularity.

4. PLEADING (§ 433)—ACTION ON POLICY— COMPLAINT—SUFFICIENCY AS AGAINST ATTACK AFTER JUDGMENT.

The petition in an action on a fire policy could not be attacked for the first time after judgment on the ground that it failed to specifically allege that plaintiff owned the insured property at the time of the loss; facts being alleged from which such ownership should be implied.

Error to Circuit Court, Chariton County; John P. Butler, Judge.

Action by W. D. Cox against the American Insurance Company of Newark, N. J. Judgment for plaintiff, and defendant brings error. Affirmed.

Fyke & Snyder, for plaintiff in error. Fred Lamb and Gilbert Lamb, for defendant in error.

JOHNSON, J.

Judgment by default was rendered for the plaintiff in the circuit court of Chariton county in an action brought therein by W. D. Cox against the American Insurance Company of Newark, N. J., and the cause is here on writ of error sued out by the defendant (plaintiff in error here). The action is on a policy of fire insurance, and, since one of the points advanced by defendant is that the petition fails to state a cause of action, we copy that pleading in our statement of facts: "In the Circuit Court of Chariton County, Missouri, at Salisbury, September Term, 1908. W. D. Cox, Plaintiff, v. The American Insurance Company of New Ark, New Jersey, Defendant. Plaintiff states that the defendant is and was at all the dates mentioned herein an insurance corporation, organized and existing under and by virtue of the laws of the state of New Jersey and duly authorized to transact the business of fire insurance in the state of Missouri, and at all of said dates was empowered to sue and be sued. Plaintiff for cause of action states: That on or about the 14th day of March, 1908, he made application to defendant for insurance in the sum of $700 against loss or damage by fire on his dwelling house No. 1 and in the sum of $100 on smokehouse 16×25 situate on the southeast quarter of the southeast quarter of section 13, in township 54, range 17, in Chariton county, Mo., which said property was then owned by plaintiff in fee simple subject only to the incumbrance of $3,500 mentioned in said application. That on said date, and pursuant to said application, and in consideration of the first annual premium of $8.80 on said date paid to the defendant, and in further consideration of an installment note in the sum of $35.20 payable in equal annual installments of $8.80 on the 1st days of March in the years 1909, 1910, 1911, and 1912, on said date executed and delivered to the defendant, the said defendant did execute and deliver to plaintiff on said date its policy and contract of insurance No. 651911, herewith filed, by the terms of which the defendant insured the plaintiff in the sum of $700 on the dwelling house aforesaid and in the sum of $100 on said smokehouse against loss or damage by fire. Plaintiff further states that on the 16th day of April, 1908, while said policy was in full force and effect, said buildings and each of them were totally destroyed by fire. Plaintiff says that in and by said policy it is provided that in the event of loss by fire the insured (the plaintiff) shall give immediate notice in writing to the defendant of such loss and shall within 30 days from such fire furnish to the defendant company proof of loss giving a detailed statement of said loss, the origination of such fire loss, and items of damage. Plaintiff says that immediately after said fire he did give the defendant notice in writing thereof and demanded blanks upon which to make and prepare said proofs of loss, that the defendant failed and refused to furnish to plaintiff the...