Thomasson v. Mercantile Town Mut. Ins. Co.

• Decision Date: 30 September 1905
• Citation: 89 S.W. 564,114 Mo. App. 109
• Parties: THOMASSON v. MERCANTILE TOWN MUT. INS. CO.
• Court: Missouri Court of Appeals

89 S.W. 564

114 Mo. App. 109.

THOMASSON v. MERCANTILE TOWN MUT. INS. CO.

St. Louis Court of Appeals. Missouri.

September 30, 1905.

1. INSURANCE—MUTUAL COMPANIES—PROCESS — SERVICE.

Rev. St. 1899, § 8092, authorizes the institution of suits against a town mutual insurance company having its principal office in St. Louis by service of process on the president, secretary, or chief officer in charge of the company's "principal office." Held, that a return that the writ was executed in the city of St. Louis on the defendant, a mutual insurance company, by leaving a copy of the writ and petition with D., secretary of defendant, he being in said defendant's established "business office" and in charge thereof, was fatally defective, for failure to show that such business office was the principal office of the company.

2. APPEARANCE—WAIVER OF DEFECTIVE SERVICE OF PROCESS.

Where, though the service on defendant company was defective on its face, defendant made no motion on a special appearance to quash the same, but entered a special appearance, and filed an answer alleging the insufficiency of the service and a general denial, it thereby appeared generally and was precluded from insisting on the want of jurisdiction over its person.

3. PLEADING—PRESUMPTIONS.

The rule that a condition of things once shown to exist will be presumed to continue until the contrary appears, though stated as a rule of evidence, applies with equal force to pleadings when the facts stated therein are in their nature, by inference, continuous, and no limitation as to time is suggested.

4. PLEADING—AIDER BY VERDICT—ACTION ON INSURANCE POLICY.

In an action on a policy the petition alleged that defendant insured plaintiff against loss or damage by fire to the amount of $300 on his barn, situated on certain property described, in D. county, Mo., and to the amount of $400 on hay and grain "therein," and to the amount of $100 on farm utensils "therein," and that on a certain day, while the policy was in force, the barn, hay, grain, and farm utensils were totally destroyed by fire. Held, that though the petition was defective for failure to state that the hay, grain, and farm utensils were located in the barn in D. county at the time of the fire. such defect was a mere defective statement of a cause of action, which was cured by verdict, under Rev. St. 1899, § 672, providing that a judgment on a verdict shall not be reversed for want of any averment on account of which a demurrer could have been maintained, or for omitting any allegation or averment without proving which the triers of the issue ought not to have given such verdict.

Bland, P. J., dissenting.

Appeal from Circuit Court, Dunklin County; Jas. L. Fort, Judge.

Action by J. W. Thomasson against the Mercantile Town Mutual Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed. See 81 S. W. 911.

Barclay & Fauntleroy, for appellant. Ely & Kelso, for respondent.

NORTONI, J.

This is a suit on a policy of insurance against fire. Plaintiff recovered judgment therein, and defendant appeals to this court. The bill of exceptions preserves none of the evidence. The only questions for review here are, first, the matter of exception pertaining to the ruling of the trial court on defendant's plea in abatement wherein it was contended that the sheriff's return to the summons failed to show that the court had acquired jurisdiction of the person of defendant; and, second, the matter arising on the record proper as to the sufficiency of the allegations of the petition. The facts will appear in the opinion.

The return on the writ of summons is as follows: "Executed this writ in the city of St. Louis, Missouri, on the within named defendant, the Mercantile Town Mutual Insurance Company (a corporation), this 13th day of April, 1903, by delivering a copy of the writ and petition as furnished by the clerk to J. W. Daugherty, secretary of the defendant corporation, he being in said defendant's usual business office and in charge thereof. The president or other chief officer of said company could not be found in the city of St. Louis at the time of service. Joseph F. Dickman, Sheriff, by Wm. Cahill, Deputy." It is contended by defendant that the return is insufficient, inasmuch as it is therein certified that the service was had in defendant's "usual business office," instead of the "principal office" of such company. The statute in that behalf is as follows: "Suits may be instituted in the circuit court of any county in this state where the cause of action originated against any company operating under the provisions of such article, or where such company has its principal office, and whenever any suit shall be so instituted against any such company, a certified copy of the original petition and summons shall be served on the president or secretary, or other chief officer in charge of the principal office of such company, by the acting sheriff of the county in which such company may have its principal office. If such company have its principal office in the city of St. Louis, then the acting sheriff of the city of St. Louis shall serve the process herein mentioned. And service when so made and proven by the return thereof, shall be deemed service on any such company proceeded against." Section 8092, Rev. St. 1899. The cause of action originated in Dunklin county. Service was had in the city of St. Louis, presumably because the principal office is in that city. This fact is not shown, however, in the return. The return states that the service was at the "usual business office" of the company in St. Louis. The statute quoted enables service to be had in St. Louis if the cause of action originated elsewhere only by serving the president, secretary or other chief officer in charge of the company's "principal office." The return shows the secretary in charge of its "usual business office" was served. That might be at a place other than its principal office. The company might have had its principal office outside of the city of St. Louis and business offices in such city, or it may have had its principal office in St. Louis, and other business offices there, which would come under the category of "usual business" office. It is apparent that the return in this case does not show good service under the statute quoted.

It is insisted, however, by respondent, that the defective service was waived by the appearance of the defendant to the merits of the cause in the trial court. The record before us shows the following in this respect. Omitting caption, the answer is as follows: "Defendant, appearing specially, by its attorneys, for the purpose of this answer and for no other purpose, avers that this court has no jurisdiction over the person of the defendant in this cause. Wherefore defendant prays that this action be abated and for its costs. (2) Without waiving the aforesaid plea in abatement, defendant, appearing specially as aforesaid, for answer to the plaintiff's petition, denies generally each and every allegation thereof." Upon this answer the court first heard the evidence on the plea in abatement, and found the issues against the defendant. The case then coming on to be heard on the merits, the defendant's counsel immediately withdrew and participated no further therein. Plaintiff proved his cause; at least we presume so, from the fact that the finding and judgment were for him. The evidence on the merits is not before us in the bill of exceptions. After the finding on the merits against it, the defendant appeared specially and filed motions for new trial and in arrest of judgment, alleging that the court erred in its finding on such plea in abatement. There was no motion to quash the return for insufficiency appearing on its face and the matter was raised in no other manner than by the answer above quoted, which answer also contained a general denial. Respondent contends that by thus answering with the general denial, appellant appeared to the merits of the case, and thereby waived its right to complain of the defective service shown by the insufficient return. Replying to this, appellant insists that under our system of pleading it was bound to include in one answer every matter of defense it had, and therefore it did not waive the plea to the jurisdiction by its pleading to the merits. Our Supreme Court in the very recent case of Newcomb v. Railway Co., 182 Mo. 707, 81 S. W. 1069, has settled this question conclusively, so far as this court is concerned. The court said: "It is true that under our system, a plea in abatement is not waived by a plea in bar in the same answer and the defendant must include all of his defenses in one answer. But the insufficiency of this return was not a point to be presented by the plea at all; it was out of place in the answer." The conclusions reached in that case are that the insufficiency, when appearing on the face of the officer's return, is a matter to be reached by motion and not by answer. In this case, the defendant might have made its special appearance for the purpose of the motion only and moved to quash the return for the insufficiency appearing on its face, and in event such motion had been overruled by the court, the appellant could have preserved its exception and withdrawn and had judgment thereafter been entered by the court, upon appeal here, the same could have been reversed because of such insufficient return. But by its general denial, the appellant made a general appearance to the merits of the cause and after such appearance is made, it is wholly immaterial as to what was the character of the return. In discussing this question, the Supreme Court in the case above cited, points out that the question of jurisdiction may arise on the face of the return of the summons or on the face of the petition, or by reason of some fact not appearing either in the return or in the petition, and said: "if it arises on the face of...