Ritchey v. Home Ins. Co.

• Decision Date: 03 February 1903
• Citation: Ritchey v. Home Ins. Co., 72 S.W. 44, 98 Mo. App. 115 (Mo. App. 1903)
• Parties: RITCHEY v. HOME INS. CO. et al.
• Court: Missouri Court of Appeals

72 S.W. 44

98 Mo. App. 115

RITCHEY v. HOME INS. CO. et al.

Court of Appeals at St. Louis, Missouri.

February 3, 1903.

ANSWER—DENIAL—INDEFINITENESS—PROCEDURE —WHEN CAUSE IS AT ISSUE.

1. Under Rev. St. 1899, § 604, providing that the answer of defendant shall contain a general or specific denial of each material allegation controverted by him, or any knowledge or information thereof sufficient to form a belief, and the statement of any new matter constituting a defense or counterclaim, an answer setting up several affirmative defenses, and concluding with the statement that, "further answering, defendant denies each and every allegation, matter, fact, and thing in the petition alleged not herein expressly admitted," is indefinite and uncertain, and subject to a motion on that ground.

2. An answer contained several affirmative defenses, and a general denial, defectively stated, and plaintiff moved to require defendant to make his answer more definite and certain by stating what allegations were admitted and what denied. This motion was sustained, and defendant refused to plead further, and the court rendered judgment for plaintiff after hearing his evidence. Held that, as the motion to make more definite and certain only affected that part of the answer containing a denial, the affirmative defenses pleaded remained intact, so that plaintiff should have replied to these defenses, and the rendition of judgment on the ex parte hearing was before the cause was at issue, and erroneous.

Appeal from circuit court, Clark county; Edwin R. McKee, Judge.

Action by Elitha Ritchey against the Home Insurance Company and others. Judgment for plaintiff, and defendant company appeals. Reversed

This is an action brought upon a policy of insurance, and in which, on motion of defendant insurance company, a portion of plaintiff's petition was stricken out, leaving remaining as plaintiff's declaration of her right of action the following: "Plaintiff, for cause of action, states that defendant Home Insurance Company was, on the 27th day of December, 1901, and for a long time prior thereto and ever since has been, and now is, a corporation duly organized, created, and existing under and by virtue of the laws of the state of New York; and as such corporation was, on said 27th day of December, 1901, and ever since has been, engaged in conducting a general fire insurance business in the state of Missouri, in accordance with the terms and provisions of the general fire insurance laws of the state of Missouri. Plaintiff further says that said defendant Home Insurance Company, by its contract and policy of insurance No. D. H. 148, dated on the 27th day of December, 1901, duly signed by its president and secretary, and countersigned by J. A. Whiteside, its local agent, at its Kahoka, Missouri, agency, and delivered to plaintiff, in consideration of a cash premium of twenty dollars, paid by plaintiff to defendant Home Insurance Company, defendant Home Insurance Company did contract, promise, and agree with plaintiff to insure plaintiff against all loss or damage by fire to the amount of two thousand dollars on the following described property, then owned by plaintiff, to wit: $300 on the two-story frame building with shingled roof, and its additions adjoining and communicating, occupied as a dwelling house, including foundations, gas and water pipes and connection, gas fixtures and electrical equipments, plumbing work, stationary heating apparatus, door and window screens, storm doors and windows, and all other permanent fixtures belonging thereto and contained therein. $100 on the shingle-roof frame building and its additions, including foundations, occupied as a private barn. $1,500 on the shingled-roof frame building and its additions, including foundations, occupied as a private barn. $50 on grain in barns above described. $50 on hay in barns above described. Plaintiff further says that in said policy of insurance all of the buildings and property aforesaid were erroneously described as being situate on 17-acre lot in sections 18 and 19, township 65, range 7, in Clark county, Missouri, adjoining the city of Kahoka, when in truth and in fact said 17-acre lot mentioned and described in said policy of insurance as adjoining said city of Kahoka was then and now is partly within the corporate limits of said city of Kahoka, and the buildings insured under and by said policy of insurance were situate upon that part of said 17-acre lot which lies within the corporate limits of said city of Kahoka, except the shingled-roof frame building and its additions, including foundation, occupied as a private barn, and insured under and by said policy of insurance for the sum of fifteen hundred dollars, which is situate partly within the corporate limits of said city of Kahoka, on the aforesaid 17-acre lot. Plaintiff further says that at the time of the insurance and delivery of said policy of insurance to said plaintiff it was intended by defendant Home Insurance Company to insure, and by the plaintiff to have insured, the buildings and property situate on 17-acre lot in sections 18 and 19, township 65, range 7, in Clark county, Missouri, in and adjoining said city of Kahoka, and plaintiff avers the fact to be that at the time of the issuance and delivery of the aforesaid policy of insurance defendant Home Insurance Company knew that said 17-acre lot was partly situate within the corporate limits of said city of Kahoka, and that the buildings and property thereon were situate upon that part of said 17-acre lot which lies within the corporate limits of said city of Kahoka, except the shingled-roof frame building and its additions, including foundation, occupied as a private barn, and insured under and by said policy of insurance for the sum of fifteen hundred dollars, which is partly situate within the corporate limits of said city of Kahoka, on the aforesaid 17-acre lot. Plaintiff further says that it was provided in said policy of insurance, by indorsement made thereon in writing, that in the event of a loss occurring thereunder such loss should be payable to Peter Wahl, mortgagee, as his interest therein might appear, that at the time of the issuance and delivery of said policy of insurance to plaintiff it was believed by plaintiff, and so represented to defendant Home Insurance Company by plaintiff, that said Peter Wahl had an interest in the aforesaid property as mortgagee, but plaintiff says that she was mistaken in her belief concerning the interest of said Peter Wahl in the aforesaid property, and avers the fact to be that at the time of the issuance and delivery of the aforesaid policy of insurance to plaintiff and at all times thereafter, said Peter Wahl had no interest in the aforesaid property or said policy of insurance as mortgagee or otherwise. Plaintiff further says that on the 4th day of January, 1902, defendant Home Insurance Company, by its instrument of writing attached to said policy of insurance and made a part thereof, consented that barn number two therein insured for fifteen hundred dollars might be occupied by a careful tenant. Plaintiff states that said policy of insurance was issued for a term of one year, commencing at noon on the 27th day of December, 1901, and terminating at noon on the 27th day of December, 1902, which said policy of insurance is herewith filed, and made a part of this petition, and marked `Exhibit A.' Plaintiff further states that at the time of the issuance and delivery of the aforesaid policy of insurance, and at all times thereafter to the time of the fire hereinafter mentioned, she was the owner in fee of all the property mentioned and described in said policy of insurance and insured therein. Plaintiff states that at about the hour of one o'clock a. m. on the 22d day of January, 1902, during the life of said policy of insurance, and while the same was in full force and effect, the shingled-roof frame building and its additions, including foundations, occupied as a private barn, and insured in said policy of insurance for and in the sum of fifteen hundred dollars, and then and there owned by plaintiff, was wholly, totally, and entirely destroyed by fire, then and thereby causing a loss and damage to plaintiff in the sum of fifteen hundred dollars. Plaintiff further states that by the terms and provisions of said policy of insurance defendant Home Insurance Company did promise, contract, and agree with plaintiff to make good and pay to her all such loss or damage to the property therein insured as should happen thereto by fire during the life of said policy of insurance. Plaintiff states that she has duly kept and performed all of the conditions required to be kept and performed by her by the terms and provisions of said policy of insurance, and faithfully fulfilled all of the requirements thereof; that immediately after the loss by fire as aforesaid she caused notice thereof to be given to defendant Home Insurance Company, and requested of said defendant Home Insurance Company such blank forms of...