Steinbruegge v. Prudential Insurance Company of America

• Decision Date: 16 January 1917
• Citation: 190 S.W. 1018,196 Mo.App. 194
• Parties: ANNIE STEINBRUEGGE, Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Respondent
• Court: Missouri Court of Appeals

190 S.W. 1018

196 Mo.App. 194

ANNIE STEINBRUEGGE, Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Respondent

Court of Appeals of Missouri, St. Louis

January 16, 1917

December 30, 1916;

Rehearing Denied 196 Mo.App. 194 at 205.

Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

James J. O'Donohoe for appellant.

(1) The Statute of Limitations does not run against a married woman. Section 1894, R. S. 1909; Smith v. Ins. Co., 64 Mo 330; Throckmorton v. Pence, 121 Mo. 50; Lindell Real Estate Co. v. Lindell, 142 Mo. 61; Linville v. Greer, 165 Mo. 380; Bucher v. Hahl, 199 Mo. 320; Elliott v. Machine Co., 236 Mo. 546; State v. Macy, 72 Mo.App. 427; Rosenberger v. Mallerson, 92 Mo.App. 368; Linck v. Vorbauer, 104 Mo.App. 368. It was permissible to prove that plaintiff was a married woman under the allegation of full performance. Martin v. Modern Woodmen, 158 Mo.App. 468; Nichols v. Ins. Co., 170 Mo.App. 437; Andrus v. Ins. Assn. Co., 168 Mo. 151. This is especially true in cases originating in the justice's court. Coscarella v. Ins. Co., 175 Mo.App. 130; Conn. Co. v. Orr, 150 Mo.App. 705. Any statement of a cause of action begun before a justice of the peace is sufficient if it apprises the opposite party of the nature of the action and is sufficient to bar another action. Dalton v. United Railways Co., 134 Mo.App. 392; Telephone Co. v. Hope, 139 Mo.App. 282. On a trial de novo in the circuit court the rule is the same. Shearman v. Rockwood, 26 Mo.App. 403; Ray v. Railroad, 25 Mo.App. 104. A demurrer is not known in justice court pleadings and is not the proper manner to test the sufficiency of a pleading in a case originating before a justice of the peace. Conn. Co. v. Orr, 150 Mo.App. 707, 708. The Statute of Limitations is an affirmative defense and is properly taken advantage of by answer in cases originating in the circuit court. Smith v. Dean, 19 Mo. 63; Johnston v. Ragan, 265 Mo. 447; Whiteside v. Magruder, 75 Mo.App. 364; Elsea v. Pryor, 87 Mo.App. 157. If the pleader in cases thus originating seeks by his demurrer to take advantage of the Statute of Limitations he must plead the very provision on which he depends. Knisely v. Leathe, 256 Mo. 359. Matters avoiding the bar of the Statute of Limitations should be pleaded in the reply and not in the petition. Shearlock v. Ins. Co., 182 S.W. 89. (2) The policies sued on were payable twenty-four hours after acceptance of satisfactory proofs of death. This acceptance was a condition precedent to liability and no action could be maintained until the condition was complied with or waived. Burnham v. Ins. Co., 75 Mo.App. 399; Leigh v. Ins. Co., 37 Mo.App. 59; Sims v. Ins. Co., 47 Mo. 59; Exchange Bank v. Ins. Co., 109 Mo.App. 658; Burgess v. Ins. Co., 114 Mo.App. 179; Queen of Ark. Ins. Co. v. Laster, 156 S.W. 848; Da Rin v. Casualty Co., 108 P. 649; American Central Ins. Co. v. Western Ins. Co., 148 F. 77; Metropolitan Life Ins. Co. v. Wagner, 109 S.W. (Tex. Civ. App.) 1120; 25 Cyc. 95; 1 Corp. Jur. 976. (3) The policies sued on stipulate that no action shall be maintainable until after the filing and acceptance of proofs of death. Hence the Statute of Limitations could not begin to run until February 1904, when the proofs were filed and accepted. Leigh v. Ins. Co., 37 Mo.App. 542; Murphy v. North British & Mercantile Co., 61 Mo.App. 323; McNees v. Ins. Co., 61 Mo.App. 335; Kauz v. Imp. Order Red Men, 13 Mo.App. 341; Maddox v. Ins. Co., 56 Mo.App. 343; Clanton v. Travelers Protective Assn., 101 Mo.App. 322; Porter v. Ins. Co., 62 Mo.App. 520; Am. Nat'l. Bk. v. Gillimore, 166 S.W. (Tex. Cir. App.) 17; Railway Passenger, Etc., Ass'n. v. Loomis, 142 Ill. 560; Spratley v. Ins. Co., 11 Bush. 43; Minnehaha v. Boyce, 138 N.W. 287; Larue v. Kershaw, Etc., Co., 59 So. 155; Gray v. Givens, 26 Mo. 291; Stark Bros. Co. v. Gooding, 175 Mo.App. 354; Rabsuhl v. Lack, 35 Mo. 316; State ex rel. v. Peacock, 45 Mo. 263; Osborne v. Hopkins, 160 Cal. 501; Re Hamlin, 133 Wis. 140; Pitman v. Ball, 140 Mo.App. 395; Staninger v. Tabor, 103 Ill.App. 330; Ganser v. Ganser, 83 Minn. 199; Brown v. Silver, 2 Neb. 164; Cary v. Koener, 200 N.Y. 253; Behlmer v. Grand Lodge, 100 Minn. 305; Purcell v. Land Title Co., 94 Mo.App. 5; Stewart v. National Council, 147 N. W. (Minn.) 651; Bold v. Buchanan, 176 Mo.App. 60; 1 Corp. Jur. 945; 25 Cyc. 1065, 1066; 2 Bacon (3 Ed.), sec. 446; Cooley's Briefs, pp. 3963 and 3972. (4) The Statute of Limitations is a part of the policy as much so as if written therein, and like policy stipulations can be waived. Shearlock v. Ins. Co., 182 S.W. 89; McLeod v. Ins. Co., 190 Mo.App. 653; Chandler v. Ins. Co., 180 Mo.App. 394; Nicholas v. Ins. Co., 101 N.W. 118; 2 May on Ins. (4 Ed.), sec. 464; Lewis v. Ins. Co., 52 Me. 492; 4 Cooley Briefs Ins., pp. 3477, 3532 (cases cited). The Statute of Limitations is waived, though legally barred, by the insurer denying liability on other grounds. 2 Bacon Benefit Soc. (3 Ed.), sec. 445; 3 Cooley's Briefs on Ins., p. 2680; 4 Cooley's Briefs on Ins., pp. 3989, 3993 (cases cited); 2 May on Ins. (4 Ed.), sec. 488; Vance on Ins. p. 510. Such waiver may occur after the cause of action is barred and need not be based upon a new agreement nor combine the elements of an estoppel. Dezell v. Ins. Co., 176 Mo. 253; Hamilton v. Railroad, 80 Mo.App. 601; Crenshaw v. Ins. Co., 71 Mo.App. 48; Fink v. Ins. Co., 66 Mo.App. 513; Fink v. Ins. Co., 60 Mo.App. 678; Stiepel v. Ins. Co., 55 Mo.App. 224; Equitable Life Society v. Mining, 58 F. 541; Prentice v. Ins. Co., 77 N.Y. 489; Ins. Co. v. Dierks, 43 Neb. 475; Ins. Co. v. Clark, 59 S.W. 863; Ins. Co. v. Monroe, 101 Ky. 12; Ins. Co. v. Allis Co., 11 Colo.App. 264; Union Casualty & Surety Co. v. Mondy, 18 Colo.App. 395; Johnson v. Ins. Co., 1 N.D. 167; Ins. Co. v. Kukral, 7 Ohio Cir. Ct. R. 356. The defendant is estopped from setting up the defense founded upon the Statute of Limitations, for it was aware of that defense in 1911, when it led the plaintiff into the trouble and expense of instituting this action in the belief that defendant's sole defense was that the insured was not dead. Shearlock v. Ins. Co., 182 S.W. 89; McCollum v. Ins. Co., 61 Mo.App. 352; Bowen v. Ins. Co., 69 Mo.App. 277, 278; Dolan v. Ins. Co., 88 Mo.App. 666; Oehler v. Ins. Co., 159 Mo.App. 707, 708; Pace v. Ins. Co., 173 Mo App. 485; Keys v. K. & L. of Security, 174 Mo.App. 671; 2 Bacon Benefit Soc. (3 Ed.), sec. 435 (cases cited); 3 Cooley's Briefs on Ins., pp. 2733, 2739 (cases cited); 2 May on Ins. (4 Ed.), sec. 488, p. 1157; Antes v. Assurance Co., 84 Iowa 355; Appleton v. British A. Ass'n. Co., 46 Wis. 33; Smith v. Ins. Co., 3 Dak. 80, Consineau v. Ins. Co., 15 Ont. R. 329; Bates v. German Commercial Acc. Co. (Vt. S. C.), 88 A. 532. The Statute of Limitations does not extinguish the debt, but simply withholds the remedy. Miller v. Miller, 169 Mo.App. 432. The remedy can no longer be withheld when the bar of the statute is lifted in the manner prescribed in sections 1909, 1911, R. S. 1909, or by estoppel, waiver or in any other manner recognized in law. Shearlock v. Ins. Co., 182 S.W. 89. (5) The improper acts of defendant prevented the commencement of the action until 1911. Hence the Statute of Limitations could not begin running until that time under section 1905, Revised Statutes 1909. Smith, Adm'r, Etc., v. Newby, 13 Mo. 159; Nelson v. Beveridge, 21 Mo. 22; Foley v. Jones, 52 Mo. 64; Wells v. Halpin, 59 Mo. 92.

Fordyce, Holliday & White for respondent.

(1) The general objection to the introduction of evidence should be sustained when the plaintiff shows by his pleadings that his demand is barred by the Statute of Limitations, and if the plaintiff is relying upon any exception to take the case out of the statute, the exception should be pleaded. Burrus v. Cook, 215 Mo. 504; Canada v. Daniel, 175 Mo.App. 68. (2) The plaintiff's petition in this case shows on its face that her claim was barred by the Statute of Limitations, since it showed that the insured had died more than ten years before the suit was filed. Kauz v. Great Council, 13 Mo.App. 341, at page 344; Boyd v. Buchanan, 176 Mo.App. 56; 25 Cyc, 1198; Revised Statutes 1909, sec. 1888. (3) Plaintiff's amended petition nowhere stated that the plaintiff was or had been a married woman during all the times mentioned in the petition, nor did counsel offer to make any such amendment at the trial. Therefore, that fact was not before the trial court for consideration and cannot be considered here. Burrus v. Cook, 215 Mo. 496; Section 2081 R. S. 1909. (4) The facts pleaded by the plaintiff in the amended petition were not sufficient to bring the case within any of the exceptions to the Statute of Limitations. R. S. 1909, section 1909; Wells v. Hargrave, 117 Mo. 563; Monroe v. Harrington, 110 Mo.App. 512; Petty v. Tucker, 166 Mo.App. 107.

ALLEN, J. Reynolds, P. J., and Thompson, J., concur.

OPINION

ALLEN, J.

This is an action upon three "industrial policies" of insurance. The suit was instituted, on September 19, 1911 before a justice of the peace, where plaintiff prevailed. Defendant appealed to the circuit court, and when the cause came on for trial there, defendant's counsel objected "to the introduction of any evidence under the petition on the ground that it shows on its face that the claim is barred by the Statute of Limitations." The court sustained this objection. Plaintiff's counsel then sought to make an offer of proof, but the court declined to permit him to do so; and after a spirited colloquy between the court and plaintiff's counsel, plaintiff took an involuntary nonsuit, with leave to move to set the same aside. And after an unsuccessful motion to set aside the nonsuit, plaintiff duly...