Hoffman v. General Exchange Ins. Corporation
| Decision Date | 07 May 1929 |
| Docket Number | No. 20565.,20565. |
| Citation | 16 S.W.2d 716 |
| Parties | HOFFMAN v. GENERAL EXCHANGE INS. CORPORATION. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.
"Not to be officially published."
Action by Lee Hoffman against the General Exchange Insurance Corporation. Judgment for plaintiff, and defendant appeals. Affirmed.
R. E. Kleinschmidt, of Hillsboro, and A. B. England, of St. Louis, for appellant.
P. S. Terry, of Festus, for respondent.
This was a suit upon an insurance policy issued by the defendant insuring a certain Chevrolet sedan against loss by fire, theft, pilferage, and robbery, in the sum of $680. From a judgment in favor of the plaintiff for $528 this appeal is prosecuted.
The answer admitted the execution of the policy, but denied generally the other allegations of the petition.
The first error assigned is to the action of the court in permitting plaintiff to amend the petition at the opening of the trial. In view of the provisions of section 1274 of R. S. Mo. 1919 vesting the trial court with discretion to permit amendments of pleadings at any time before final judgment, we think the trial court did not commit error in allowing the amendment alleging plaintiff was the owner of the car. "Amendments are favored and should be liberally allowed in furtherance of justice." State ex rel. Blythe v. Trimble, 302 Mo. loc. cit. 715, 258 S. W. 1018.
As to defendant's contention that the petition fails to allege the value of the property, and is therefore fatally defective, we find that the petition states that the car was insured for $680; that it was taken away from plaintiff by means of theft, robbery, and pilferage, and totally injured and destroyed to plaintiff. The pleading does not specifically plead its value at the time of the loss, but under the construction which we must give to it in the absence of a demurrer it cannot be said to be lacking an allegation of value, because certainly it is fairly inferable that its value was the amount for which it was insured. Gustin v. Concordia Fire Ins. Co., 164 Mo. loc. cit. 176, 64 S. W. 178; Koropchensky v. Goddard (Mo. App.) 266 S. W. 343.
And the evidence by plaintiff disclosed that the car was worth $700, so that the value was at least impliedly alleged in the petition and definitely shown by the testimony, and any defect in the petition in this respect was thus cured after verdict. Gustin v. Concordia Fire Ins. Co., supra.
The defendant also urges in the same assignment the refusal of the court to sustain an objection to the introduction of any evidence on the ground that the petition failed to state a cause of action. We have carefully examined the petition as the same was amended. The defendant does not point out in what particular it lacks the statement of a cause of action, and giving to the petition the intendment which is to be indulged in favor of it upon an attack for the first time upon an objection to the introduction of evidence, we are of the view that it does properly state a cause of action. Mayhew v. Mutual Life of Illinois, 217 Mo. App. 429, 439, 266 S. W. 1001; Ahern v. Collins, 39 Mo. 145; McIntyre v. Insurance Co., 142 Mo. App. 256, 266, 126 S. W. 227; Doty v. Western & Southern Life Ins. Co. (Mo. App.) 16 S.W.(2d) 712.
The defendant's next contention is that the court erred in not sustaining the demurrer offered at the close of the plaintiff's case. This objection need not be separately considered, because it is merged in the demurrer offered at the close of the whole case. Graefe v. Transit Co., 224 Mo. loc. cit. 253, 123 S. W. 835; Geninazzi v. Leonori (Mo. App.) 233 S. W. loc. cit. 76.
The defendant's next contention is that the court erred in not sustaining the demurrer offered by it at the close of the whole case. This demurrer necessitates an examination of the evidence.
The testimony for plaintiff was to the effect that plaintiff was the owner of the automobile, and that on September 8, 1927, he sent two of his employees to St. Louis for vegetables and fruit that were needed in his business as a merchant, the two employees leaving on their mission about 2 o'clock in the morning; that the car was in perfect condition at that time and cost him about $833; that when plaintiff next saw the car the glass was broken, the body had two bullet holes in the back, and the glass on the sides was broken, the two fenders on the left side were ruined as was also the running board, the wheels were bent; that the car was a total wreck; that nothing was missing from the car except the chauffeur's license and a dash-light.
The two employees testified that they left Crystal City about 2 o'clock in the morning, had reached a point about a mile to the north of the Meramec bridge when a truck, coming from the other direction, ran in front of their car, two men alighted therefrom, one of these men having a gun and the other a club, and told the young men to "beat it"; that they left the scene because they thought the two men might kill them; that they ran down the road for some distance, secured a ride in a truck going south, reached Crystal City about 5 o'clock, and immediately reported the incident to plaintiff; that when they left the scene of the alleged robbery no damage had been done to plaintiff's automobile.
A witness for plaintiff testified as an expert that the automobile in question before the incident...
To continue reading
Request your trial
-
Gould v. M.F.A. Mut. Ins. Co.
...Mo.App., 266 S.W. 343(1); Avery v. Mechanics' Ins. Co., 222 Mo.App. 31, 35, 4 S.W.2d 871, 873(3). See also Hoffman v. General Exchange Ins. Corp., Mo.App., 16 S.W.2d 716, 717(2).3 Gustin v. Concordia Fire Ins. Co., supra, 164 Mo. loc. cit. 178, 64 S.W. loc. cit. 180; Hoffman v. General Exch......
-
Cushulas v. Schroeder & Tremayne
... ... SCHROEDER AND TREMAYNE, INCORPORATED, A CORPORATION, PLAINTIFF IN ERROR Court of Appeals of Missouri, St ... United Railways ... Co., 259 S.W. 821; Hoffman v. Ins. Corp., 16 ... S.W.2d 716; Doty v. Life, 16 S.W.2d ... was injured and the cause of his injury. The general charge ... of negligence must be deemed to relate to and ... ...
-
Propst v. Capital Mut. Ass'n
... ... CAPITAL MUTUAL ASSOCIATION, A CORPORATION, APPELLANT Court of Appeals of Missouri, Kansas City ... Green ... v. American Life Ins. Co., 93 S.W.2d 1119, l. c. 1123; ... Bathe v. Mutual ... by general allegation of due performance of all conditions ... Sec ... c. 163, 226 ... Mo.App. 916; Hoffman v. McCracken, 168 Mo. 337, 67 ... S.W. 878; Welch v ... c. 173; Hoffman v ... General Exchange Ins. Corp., 16 S.W.2d 716. (h) There ... was much ... ...
-
State ex rel. Schroeder & Tremayne v. Haid
... ... 807 The State ex rel. Schroeder & Tremayne, a Corporation, v. George F. Haid et al., Judges of St. Louis Court of ... United Railways ... Co., 259 S.W. 821; Hoffman v. Ins. Corp., 16 ... S.W.2d 716; Doty v. Life, 16 S.W.2d ... of his injury. The general charge of negligence must be ... deemed to relate to and ... ...