Swift v. Central Union Fire Ins. Co.

• Decision Date: 17 January 1916
• Docket Number: No. 12827.,12827.
• Citation: 217 S.W. 1003,202 Mo. App. 419
• Parties: SWIFT et al. v. CENTRAL UNION FIRE INS. CO.
• Court: Missouri Court of Appeals

217 S.W. 1003

202 Mo. App. 419

SWIFT et al. v. CENTRAL UNION FIRE INS. CO.

No. 12827.

Kansas City Court of Appeals. Missouri.

January 17, 1916.

On Motion for Rehearing, June 12, 1916.

Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.

"Not to be officially published."

Action by William S. Swift and another, copartners under the name of the American Scale Company, against the Central Union Fire Insurance Company. Judgment for plaintiffs, and defendant appeals. Cause certified to Supreme Court on ground of conflict with decisions of that court.

For opinion of Supreme Court affirming, see 216 S. W. 935.

Lyons & Smith, of Kansas City, and Paul E. Bradley, of Joplin, for appellant.

George H. English, Jr., of Kansas City, for respondents.

ELLISON, P. J.

Plaintiffs' case is based on an oral contract of fire insurance made by plaintiffs with defendant's agent. They obtained judgment in the circuit court.

[] The chief objection to the judgment is that the petition does not state facts sufficient to constitute a cause of action. The particular point is that there is no allegation that there was a consideration for the promise of insurance. The point is well made. McNulty v. Collins, 7 Mo. 69; Hart v. Harrison Wire Co., 91 Mo. 414, 4 S. W. 123; County v. Auchley, 92 Mo. 126, 4 S. W. 425; Bliss on Code Pleading, §§ 268, 269, 308; 1 Chitty on Pleading (16th Ed.) 300, 301 (star page), 382, 383 (bottom page). Without a consideration a promise to pay money, or to insure against loss of property, will not afford a basis for a cause of action; an action cannot be successfully maintained on a promise of that kind. Therefore a petition which fails to allege a consideration fails to state a cause of action. If the action had been on a promise in writing for the payment of money, the promise would have imported a consideration and been within the provision of section 2774, R. S. 1909. Rector v. Fornier, 1 Mo. 204; Johnson v. Woodmen of the World, 119 Mo. App. 98, 95 S. W. 951.

[] Plaintiffs suggest that the petition is good notwithstanding the foregoing defect in that it alleges that the oral contract was that the contract of insurance was upon the same general terms, so far as applicable, as those embraced in a certain writing which it had with defendant which the pleader recites at length in the petition, from which it appears there was a consideration expressed for that contract. But such recitation of some other contract is not an allegation of a consideration for the contract involved. The question here is as to the consideration for this agreement to adopt the provisions of that other contract.

[3] The next matter in avoidance of defendant's point is that after judgment, but before the motions for new trial and arrest were overruled, the trial court permitted an amendment of the petition by alleging a consideration. The statute (sections 1851, 2119, 2120, R. S. 1909) permits an amendment of formal defects in the pleading, but not one that goes to the very cause of action itself. Hart v. Harrison Wire Co., 91 Mo. 414, 420, 4 S. W. 123; Andrews v. Lynch, 27 Mo. 169.

In considering these decisions, and those hereafter referred to, the distinction and difference must be noted between allowing an amendment upon which to render a judgment in a trial already had and allowing an amendment for the purpose of a new trial.

We think it has been the understanding of the bench and bar of the state that formal defects in a petition may be cured by amendment after verdict, and even in instances relating to a statement of a cause of action itself, if the cause of action be stated defectively or imperfectly, the petition may be amended after verdict, and judgment then rendered on the verdict. But this can never be done if no cause of action is stated. Weil v. Greene County, 69 Mo. 281, 286; Grove v. City of Kansas, 75 Mo. 672; Welch v. Bryan, 28 Mo. 30. But it ought never to be said that you may for the first time state a cause of action for a trial after that trial has been had and take judgment on the new statement. The pleading of a cause of action must necessarily precede a trial, else difficulties would arise hard to measure. If a proper time to settle what amendment is necessary in order that a cause of action be stated is after the trial, there has been heretofore much waste of time by the courts in determining that question before the trial. It would seem that, if that procedure is allowable, it would simplify matters to try some case or other without a petition and then file a petition bottomed on the case tried. Our relief statutes are curative—that is their popular name—they are not creative. They cure a cause of action which before trial has been awkwardly, imperfectly, or defectively stated; but they do not permit one to be manufactured out of new material after trial, so as to render judgment thereon. See in illustration St. Louis v. Wright Cont. Co., 210 Mo. 491, 500, 501, 109 S. W. 6.

The following cases relied upon by plaintiffs are far from sustaining them, viz.: Tebeau v. Ridge, 261 Mo. 547, 170 S. W. 871, L. R. A. 1915C, 367; Sawyer v. Railroad, 156 Mo. 468, 57 S. W. 108; Elfrank v. Seiler, 54 Mo. 134; and Case v. Fogg, 46 Mo. 44, 47. In neither of these was there a failure to state a cause of action, but in each a cause of action was imperfectly stated. In the first case an allegation of ownership of land was necessary. There was such allegation in effect, but the court stated (261 Mo. 558, 170 S. W. 873) that it was not "in apt terms." It is stated in the opinion (261 Mo. 561, 170 S. W. 874) that "setting out in the petition in hæc verba the paper containing the option to buy was a sufficient compliance with any requirement to plead ownership." In this condition of the pleading, with no objections and each party treating the matter as sufficiently pleaded, the court held there was a cause of action stated. There was no question of amendment in the case.

In the second case the court decided (156 Mo. 476, 57 S. W. 109) that the petition stated a cause of action. The court then took up the question whether an "alleged failure to negative payment" rendered the petition bad, and held it did not. Then the court added that, conceding the petition should have negatived defendant's failure to exercise a certain option, it was merely a defect cured by the evidence and verdict; in other words, the court did no more than to say that, if a cause of action was stated, a defect in the petition was curable by verdict.

In the third case it is expressly decided that the petition merely lacked form, but did state a cause of action. But in the course of the opinion the court said:

"There are only two things under our liberal system which are fatal to a suit, and those are: First, that the petition does not state facts sufficient to constitute a cause of action; and, second, that the court has no jurisdiction over the subject-matter of the suit. And the fatality as to the first instance cited may be obviated so far as concerns a formal sufficiency by amendment; but, if the pleader refuse to amend, defeat awaits him."

This expression as to ad amendment is laid hold of as aiding the course taken at the present trial. It has no application. The amendment referred to evidently is one to be made before or during the trial; if not made then, "defeat awaits him."

In the last case the petition alleged the damages sustained on account of the conversion of some merchandise, but imperfectly alleged its value. The value was denied by the answer, and the court merely held the defect was cured by verdict.

It has been a long time since Judge Napton announced in Andrews v. Lynch, supra, that

"The old rule of the English judges that a verdict would supply whatever of necessity must have been proved to the jury has never been held to extend to cases where the gist of the action is omitted. Nor have the various statutes of amendments and jeofails enacted in several of our states and embodying this principle ever been construed to embrace a case where no cause of action is stated."

That statement has never been questioned since; on the contrary, it is being cited on all fit occasions.

[] Passing by the foregoing, plaintiffs call to their aid section 2026, R. S. 1909. It reads as follows:

"When a judgment shall be arrested, the court shall allow the proceedings in which the error was to be amended, in all cases when the same amendment might have been made before trial, and the cause shall again proceed according to the practice of the court."

That statute affords no relief to the situation in which plaintiffs find themselves. The statute means that when a trial court arrests a judgment, for a reason that is absolutely fatal to the case, that case is at an end, and," if the plaintiff has any right, a new action must be brought. It is said of a motion in arrest that, "if granted, it does not necessarily result in a new trial" (Stid v. Railroad, 211 Mo. 411, 415, 109 S. W. 663, 664); that is, if the error or defect is such that it could have been cured by amendment before the trial, then the effect following the sustaining of the motion in arrest and allowing such amendment is the granting a new trial (State ex rel. v. Fisher, 230 Mo. 325, 336, 130 S. W. 35, Ann. Cas. 1912A, 970), when the cause may be heard this time on a pleading which states a cause of action; that is to say, in the language of the statute, "the cause shall again proceed according to the practice of the court."

In O'Toole v. Lowenstein, 177 Mo. App. 662, 160 S. W. 1016, the St. Louis Court of Appeals decided an amendment could be made after verdict, and it rightly remanded the case for new trial. But plaintiff lays hold of remarks of that court in the course of the opinion in stating what this court had decided concerning the right to amend after verdict and the right to take judgment on that verdict. Golden v. Moore, 126 Mo. App. 518, 104 S. W....