Rogers v. The Shawnee Fire Insurance Company

• Decision Date: 08 June 1908
• Citation: 111 S.W. 592,132 Mo.App. 275
• Parties: HUGH L. ROGERS, Respondent, v. THE SHAWNEE FIRE INSURANCE COMPANY, Appellant
• Court: Kansas Court of Appeals

111 S.W. 592

132 Mo.App. 275

HUGH L. ROGERS, Respondent, v. THE SHAWNEE FIRE INSURANCE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 8, 1908

Appeal from Clinton Circuit Court.--Hon. Alonzo D. Burnes, Judge.

AFFIRMED.

Judgment affirmed.

Bruce Barnett and Paul R. Stiston for appellant.

(1) The petition does not state facts sufficient to constitute a cause of action, and the court erred in overruling the defendant's demurrer thereto. (2) The petition is insufficient in that it fails to allege any contract or promise to pay on the part of the defendant. Sappington v. Insurance Co., 72 Mo.App. 76; Hall v Southmayd, 15 Barber 33; McKinney v. Bull, 16 N.Y. 303. (3) Even if the petition alleged facts sufficient to constitute a cause of action the court erred in rendering judgment by default against the defendant for the reason that the demurrer to the petition was in fact sustained, as shown by the record, and this order sustaining the demurrer was never set aside, and no amended petition was ever filed nor leave taken to file the same.

John A Cross for respondent.

(1) The demurrer to the petition admitted all the material facts alleged therein. Dodson v. Lomax, 113 Mo. 555; Verdon v. St. Louis, 131 Mo. 26. (2) The petition states a cause of action and should be liberally construed with a view to substantial justice. R. S. 1899, sec. 629; Davis v. Jacksonville S. L., 126 Mo. 69; Bricker v. Stone, 47 Mo.App. 530; Murphy v. Insurance Co., 70 Mo.App. 78. (3) By filing the second motion to set aside the judgment, and asking for leave to file its answer appellant waived whatever right it might have had for a review of the action of the court in overruling the demurrer. Waters v. Insurance Co., 106 S.W. 1120; Fuggle v. Hobbs, 42 Mo. 541; Scoville v Glasner, 79 Mo. 449. (4) The value of the property was fixed by the contract of insurance, and the averment of the amount for which it was insured was all that was necessary for that was all that plaintiff was required to prove. R. S. 1899, secs. 7969, 7979; Howerton v. Insurance Co., 105 Mo.App. 575; Havens v. Insurance Co., 123 Mo. 417; Stevens v. Insurance Co., 120 Mo.App. 88.

OPINION

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 thirty 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. There are only two questions presented on the appeal, viz.:

First. That the petition does not state a cause of action. Second. That the court erred in rendering judgment by default for the reason that the demurrer to the petition had been sustained which action was never set aside and that the subsequent order sustaining it was nugatory.

The specific defects of the petition are that it fails to allege any contract of the defendant to pay any sum of money in the event of destruction of the property insured or its damage by fire. The petition alleges in substance; that defendant by its contract and policy of insurance in consideration of the sum of $ 26 paid, insured plaintiff against loss or damage by fire to the amount of $ 1,000, on property therein described; that the property was totally destroyed by fire; that defendant was notified of his loss; that he had complied with all the conditions of the policy; that he had demanded payment of the amount of his loss which defendant refused; and that the same was due and payable at the time his action was commenced.

In Sappington v. Insurance Co., 72 Mo.App. 74, this court held that the petition in that case...