Rogers v. Shawnee Fire Ins. Co. of Topeka, Kan.

• Citation: 111 S.W. 592,132 Mo. App. 275
• Parties: ROGERS v. SHAWNEE FIRE INS. CO. OF TOPEKA, KAN.
• Decision Date: 08 June 1908
• Court: Court of Appeal of Missouri (US)

111 S.W. 592

132 Mo. App. 275

ROGERS v. SHAWNEE FIRE INS. CO. OF TOPEKA, KAN.

Kansas City Court of Appeals. Missouri.

June 8, 1908.

1. INSURANCE—FIRE POLICY—ACTIONS—PETITION.

A petition in an action on a fire policy, alleging that defendant by its written policy, for a stated consideration, by contract insured plaintiff against loss or destruction by fire, contained a sufficient statement of a contract for indemnity against such loss, and sufficiently pleaded defendant's promise to pay the same.

2. INDEMNITY—DEFINITION.

Indemnity means reimbursement, making good, recompense for loss or injury [citing Words and Phrases, vol. 4, p. 3539].

3. INSURANCE—DEFINITION.

"Insurance" is a contract by which one of the parties, called the insurer, binds himself to the other, called the insured, to pay to him a sum of money, or otherwise indemnify him.

4. JUDGMENT — PLEADING TO SUPPORT — MATURITY OF CLAIM — ALLEGATION — SUFFICIENCY AFTER JUDGMENT.

In an action on a fire insurance policy, an allegation that the insurance was due, while merely a conclusion of law, was also a statement of the fact, and sufficient to support a judgment on the policy.

5. PLEADING — DEMURRER — OVERRULING — SUCCESSIVE ORDERS.

Where, after a demurrer was sustained, the court reconsidered the matter, and entered an order overruling the demurrer without setting aside the former order sustaining it, the second order was not void for want of jurisdiction, as it in effect operated to vacate the former order.

6. SAME — ANSWER — LEAVE TO FILE — EFFECT TO WAIVE DEMURRER.

Defendant abandoned his demurrer to the petition after it had been overruled by asking leave to file an answer, and taking time for that purpose.

Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.

Action by Hugh L. Rogers against the Shawnee Fire Insurance Company of Topeka, Kan. Judgment for plaintiff, and defendant appeals. Affirmed.

Bruce Barnett and Paul R. Stiston, for appellant. John A. Cross, for respondent.

BROADDUS, P. J.

This is a suit on a fire insurance policy. The sufficiency of the petition is the subject of controversy. The defendant demurred to it in the trial court on the ground that it did not state a cause of action. On the 26th day of January, 1908, the court made an order of record sustaining the demurrer. On the 31st day of January the court reconsidered the demurrer, and entered an order overruling the same, to which action of the court defendant excepted, and took leave to file answer to the petition 30 days before the next term. At the succeeding term judgment, by default, was rendered against defendant. At the same term defendant appeared and moved to set aside the default, which motion was overruled, and defendant appealed.

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