Mutual Life Ins. Co. of Baltimore v. Eaves
| Citation | 2 S.W.2d 193 |
| Decision Date | 07 February 1928 |
| Docket Number | No. 19999.,19999. |
| Parties | MUTUAL LIFE INS. CO. OF BALTIMORE v. EAVES. |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.
"Not to be officially published."
Suit by the Mutual Life Insurance Company of Baltimore against Melvin Eaves. From a judgment sustaining defendant's demurrer to plaintiff's amended petition, plaintiff appeals. Affirmed.
Jones, Hocker, Sullivan & Angert, of St. Louis, for appellant.
Foristel, Mudd, Blair & Habenicht, H. Randolph Mudd, and Harry S. Rooks, all of St. Louis, for respondent.
This is a suit in equity to cancel a policy of life insurance brought against the beneficiary after the insured's death, on the ground of alleged misrepresentations made in the application for the policy by the insured, the policy in question containing a clause making the same incontestable after a period of 2 years, excepting for fraud, misrepresentation of age, or nonpayment of premiums. The appeal is by the plaintiff from the trial court's judgment sustaining defendant's demurrer to plaintiff's amended petition.
In its original petition plaintiff set up that the alleged misrepresentations "were false, fraudulent, and untrue." The defendant, beneficiary, in due course filed a counterclaim stating therein specifically that by the filing thereof he did not waive his right to demur to the petition, nor admit that on the allegations in the petition the plaintiff has any right to prosecute and maintain this action. The counterclaim set out, in conventional manner, allegations constituting an action on behalf of the defendant and against plaintiff on the policy of insurance referred to in plaintiff's petition, based upon the death of the insured, and prays judgment for the face of the policy.
Thereafter, by leave of court, plaintiff filed an amended petition which in all respects is identical with the original petition excepting in the paragraphs relating to fraudulent representations and the incontestability clause. These changes we show by a parallel quotation of these paragraphs from the two pleadings as follows:
Original Petition. Amended Petition
"Plaintiff further alleges "Plaintiff further alleges
that said representations, that said representations
and each of them, and each of them
made by the said Amy made by the said Amy
Eaves in her application Eaves in her application
for said policy were for said policy, were untrue
false, fraudulent, and untrue, and that prior to
and that prior to her said application, and
her said application, and in September, 1924, the
in September, 1924, the said Amy Eaves was afflicted
said Amy Eaves was afflicted with double pneumonia
with double pneumonia for which said
for which said disease disease she had been
she had been treated treated by a physician.
by a physician. * * * * * *
"Plaintiff further alleges "Plaintiff further alleges
that it was provided that it was provided in
in and by the terms of and by the terms of said
said policy that the same policy as follows:
should become incontestable "`This policy will be
after 2 years from incontestable after 2
October 18, 1924." years, except for fraud,
misrepresentation of age,
or nonpayment of premium.'"
The defendant thereupon filed a demurrer to the amended petition, stating as grounds therefor:
"That the petition fails to state facts sufficient to constitute a cause of action in this: That the petition shows upon its face that plaintiff is not entitled to the remedy prayed in the petition or to any remedy; that the plaintiff has a full, complete, and adequate remedy at law; that the defendant is entitled to a trial by a jury of the issues of fact as alleged in the petition."
Defendant's demurrer was sustained, and the following entry made in the record:
"A demurrer to plaintiff's amended petition having been sustained by the court on November 16, 1926, and the plaintiff having declined to plead further, and having elected to stand on said amended petition, plaintiff's amended petition and cause of action is hereby dismissed and judgment rendered against plaintiff for the costs hereof."
Plaintiff in due course appeals.
We will direct ourselves, first, to defendant's (respondent's) motion to dismiss this appeal upon the ground that, upon the face of the record, it appears that there is no final judgment in the case from which an appeal will lie. The argument in support of this motion is that the defendant's counterclaim filed to plaintiff's original petition is still pending in the cause, and that the judgment on the demurrer to the amended petition is but interlocutory from which no appeal will lie, and that only upon a hearing and determination of defendant's counterclaim can final judgment be entered on the demurrer and also on the counterclaim.
Upon the record before us, the motion to dismiss must be overruled. In arriving at this conclusion we do not overlook the fact that section 1304, Revised Statutes of Missouri 1919, specifically provides that whenever a set-off or counterclaim shall be filed in an action, under the provisions of article 7, c. 12, entitled "Set-off," such set-off or counterclaim shall be deemed in law and treated as an independent action, and that the dismissal or any other discontinuation of the plaintiff's action, in which said set-off or counterclaim shall have been filed, shall not operate to dismiss or discontinue said set-off or counterclaim, but the defendant may prosecute his set-off or counterclaim against the plaintiff as though it had originally been brought as an action against the plaintiff. However section 1224, Revised Statutes of Missouri 1919, provides that the only pleading on the part of the defendant shall be "either a demurrer or an answer." Therefore the pleading which the defendant filed to the plaintiff's original petition, admittedly not being a demurrer, was his answer, and the defendant, under section 1232, in his answer set up a counterclaim.
In this situation plaintiff, by leave of court, filed an amended petition. The defendant then filed his demurrer thereto and had it sustained. In our view defendant must thereby be deemed to have withdrawn, waived, or abandoned his answer or counterclaim filed to plaintiff's original petition, for under our statutes a general demurrer and an answer are not available to the defendant simultaneously.
In the early case of Dunklin County v. Clark, 51 Mo. 60, it was ruled that if a demurrer be filed and not disposed of, and an answer is afterwards filed and the case tried on the answer, the demurrer is thereby waived, and that where an answer is filed and afterwards the case goes off on demurrer without noticing the answer, the proceeding on the demurrer amounts to a withdrawal of the answer.
In Henley v. Henley, 93 Mo. 95, 5 S. W. 701, where plaintiff filed both a reply and a demurrer to the answer of the defendant, the court held that:
"Even if the reply was designed to make an issue of fact on the plea of a former adjudication, insisting upon the demurrer thereafter would amount to a withdrawal of the reply as to the special defense to which the demurrer was interposed."
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