Mayhew v. Mutual Life of Illinois
| Decision Date | 16 December 1924 |
| Docket Number | No. 3666.,3666. |
| Citation | 266 S.W. 1001 |
| Parties | MAYHEW v. MUTUAL LIFE OF ILLINOIS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Lawrence County; Chas. L. Henson, Judge.
Action by D. S. Mayhew, administrator of the estate of Fern B. Wilmeshir, against the Mutual Life of Illinois. From judgment for plaintiff, defendant appeals. Affirmed.
Dave Dabbs, of Kansas City, for appellant.
James D. Sater, of Monett, for respondent.
Action upon an accident insurance policy. Verdict and judgment for plaintiff and defendant appealed.
The name of the insured was Samuel F. Wilmeshir, who was a dentist, living at Monett, Mo. The beneficiary in the policy was, his wife, Fern B. Wilmeshir. The insured, while insane, shot and killed his wife and himself. They were at the time visiting the wife's parents, at Bourbon, Mo. Shots were heard in their, room, and when parties got into the room the husband, Samuel F. Wilmeshir, was dead, and his wife almost dead. She breathed once or twice only after the parties reached the room. The plaintiff was appointed her administrator and brought this suit.
At the trial the sufficiency of the petition was attacked by an objection to the introduction of any testimony, on the ground that the petition failed to state a cause of action, and the appellant insists here that its objection should have been sustained. Thy petition after alleging the incorporation of defendant in the state of Illinois, and its authorization to do business in Missouri, and the death of Fern B. Wilmeshir, and his appointment as her administrator, contains the following as the statement of plaintiff's cause of action, to wit:
The petition then alleged demand and refusal to pay.
Three objections are made to the sufficiency of the petition: First, it does not allege that the policy was in force at the time of the death of the assured; second, it does not allege that the beneficiary, Fern B. Wilmeshir, survived the assured nor her relationship to him; third, it does not allege the terms and conditions of the policy, and that these had been complied with. Of these in inverse order. The petition does allege that the policy was issued and delivered to Samuel F. Wilmeshir, and that defendant thereby insured the life of said Samuel F. Wilmeshir against death by accident, and that he was accidentally killed, and that the assured had complied with all the terms and conditions of the policy, and that after his death proofs of death were furnished defendant as required by it. We think this sufficient as against the third objection aforesaid.
The second objection is that the petition does not allege that the beneficiary, Fern B. Wilmeshir, survived the assured nor her relationship to him. The fact that her administrator was suing to recover on the policy was notice to defendant that the claim of plaintiff would be that, under the terms of the policy, a right of action accrued to her in her lifetime. She was named as beneficiary in the policy, and if she did not survive the assured, or was not a person for whose benefit he could legally procure a policy, those were matters of defense, and, while the petition would have been in better form, had it alleged both the survivorship and the relationship, a failure to specifically make those allegations should not be regarded as fatal after verdict.
The first objection, to wit, that the petition does not allege that the policy was in force at the time of the death of the assured, is of a more serious import. We do not, however, think it fatal after verdict. Had defendant filed a demurrer to the petition and stood on it, its position here would be much stronger. The answer admits that defendant issued the policy sued on; then alleged it was void because of fraud and misrepresentation in procuring it. This was equivalent to an admission that the policy was in force at the time of the death of the assured unless the alleged fraud and misrepresentation voided it. The omission of an essential allegation in a petition may be cured by an admission in an answer or by the answer putting in issue the omitted allegation of fact. Davidson v. Laclede Land & Improvement Co., 253 Mo. 223, 161 S. W. 686; McIntyre v. Federal Life Ins. Co., 142 Mo. App. 256, 265, 126 S. W. 227; Hays v. Miller's Estate, 189 Mo. App. 72, 77, 78, 173 S. W. 1096.
The only objection to the petition at the trial was made by an objection to the introduction of any testimony. This form of attack on a petition, while allowable, is not favored by the courts, and after verdict all reasonable intendments will be indulged in favor of sustaining it. The ultimate purpose to be accomplished by the allegations of a petition is to furnish a basis for a judgment, and to notify the defendant what he must defend against. After answering in this case, and admitting it issued the policy sued on, and then...
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