Gustin v. Concordia Fire Ins. Co.

• Decision Date: 28 June 1901
• Parties: GUSTIN v. CONCORDIA FIRE INS. CO.
• Court: Missouri Supreme Court

64 S.W. 178

164 Mo. 172

GUSTIN v. CONCORDIA FIRE INS. CO.

Supreme Court of Missouri, Division No. 2.

June 28, 1901.

INSURANCE—FIRE—ACTIONS—COMPLAINT—DEFECTIVE ALLEGATIONS—VALUE—OWNERSHIP —CURE BY VERDICT.

1. Where, in an action on a fire insurance policy, the complaint stated the amount of insurance and a total loss, without alleging the value of the property, but plaintiff offered evidence showing its value, which defendant met by evidence of a different value, the defect in the complaint was cured by a verdict in favor of plaintiff.

2. Where, in an action on a fire insurance policy, the complaint alleged the insurance of plaintiff's goods, their loss without his negligence, and proof of loss made by him, but did not specifically allege his ownership, it is merely a defective statement of a good cause of action, and cured by a verdict in his favor; the proofs, without objection, showing his ownership when insured and destroyed.

Appeal from circuit court, Clinton county; W. S. Herndon, Judge.

Action by W. J. Gustin against the Concordia Fire Insurance Company. Certified after affirmance by the Kansas City court of appeals on defendant's appeal from a judgment in favor of plaintiff. Affirmed.

F. B. Ellis, for appellant. E. C. Hall, for respondent.

GANTT, J.

This is an action on a fire insurance policy issued by the defendant company to plaintiff, whereby defendant insured plaintiff against loss by fire to the amount of $400 on his furniture, fixtures, pool and billiard tables, chairs, cues and racks, billiard balls, stoves, carpets, beds, and all such other articles, contained in the one-story brick building occupied by plaintiff, and situated on lot 8, Riley's subdivision of the original town of Plattsburg, Mo. The judgment of the circuit court was for the plaintiff, and that judgment was affirmed by the Kansas City court of appeals, but as the court of appeals was of opinion that its judgment was in conflict with the opinion of the St. Louis court of appeals in Coleman v. Insurance Co., 69 Mo. App. 566, it certified the cause to this court, in obedience to the requirement of the constitution of this state. As the insufficiency of the petition to state a cause of action is the principal ground upon which a reversal is sought, we insert the pleadings: "Plaintiff states that the defendant is a corporation duly organized and acting under and by virtue of the laws of the state of Wisconsin, and at all times hereinafter mentioned was duly authorized and operating its business as a fire insurance company in the state of Missouri by virtue of the laws thereof; that on the 9th day of January, 1897, the said defendant, by its policy of insurance No. 9,373, herewith filed, and marked as Exhibit A, insured plaintiff's property, to wit, his furniture and fixtures, billiard tables, chairs, cues and racks, billiard balls, stoves, carpets, beds, bedding, and all other such articles, while contained in the one-story brick, metal-roof building occupied by the insured and situated on lot 8 in Riley's subdivision of the original town of Plattsburg, in the total sum of four hundred dollars, against all direct loss or damage by fire, for one year from said date; that said policy was duly executed and delivered to the plaintiff for and in consideration of the premium of seven dollars then and there paid by plaintiff to defendant's agents, Finch & Gordon, of the city of Plattsburg; that afterwards, to wit, on the 28th day of January, 1897, all of the property aforesaid, insured as aforesaid, was totally destroyed by fire, without any fault or negligence of plaintiff, to plaintiff's damage in the sum of four hundred dollars; that afterwards, and within the time limited in said policy, the plaintiff made out and delivered to the defendant a complete proof of loss, under and by virtue of said fire, of the property so insured; that notwithstanding such insurance on the part of the defendant, and the payment of the premium, and a full compliance with all the conditions of said policy by the plaintiff, the defendant has failed, neglected, and refused to pay the amount of said loss and damage, and still fails and refuses so to do, to the plaintiff's damage in the sum of four hundred dollars, for which he asks judgment, and for costs herein expended." The following is the answer and the caption: "Now at this time comes the defendant in the above-entitled cause, and, for answer to plaintiff's petition, denies each and every allegation therein contained; denies that said Gustin was the owner of said property, or any part thereof." The cause was tried by the court and a jury, and resulted in a verdict for plaintiff for $350. On the trial, plaintiff introduced in evidence, without objection, the policy of insurance. Plaintiff testified in his own behalf that the property described in the policy was his own property; that it was destroyed by fire January 28, 1897. He made out proofs of loss, and sent them to the company, and received an acknowledgment that the company received them, but declined to pay him — First, on account of the defect in the signature or execution; and, secondly, because there was a bill of...