Wicecarver v. Mercantile Town Mut. Ins. Co.

• Decision Date: 23 March 1909
• Citation: 117 S.W. 698,137 Mo. App. 247
• Parties: WICECARVER v. MERCANTILE TOWN MUT. INS. CO.
• Court: Missouri Court of Appeals

117 S.W. 698

137 Mo. App. 247

WICECARVER v. MERCANTILE TOWN MUT. INS. CO.

St. Louis Court of Appeals. Missouri.

March 23, 1909.

1. INSURANCE (§ 618)—ACTION ON POLICY—VENUE.

Under Rev. St. 1899, § 8092 (Ann. St. 1906, p. 3843), providing that a suit on a town mutual insurance policy may be brought in the county where the cause of action originated, or in the county where the company has its principal office, an action on a town mutual insurance policy is properly brought in the county where the property insured and destroyed was located.

2. INSURANCE (§ 626)—MUTUAL COMPANIES—SERVICE OF PROCESS—"PRINCIPAL OFFICE"—"USUAL BUSINESS OFFICE."

Under Rev. St. 1899, § 8092 (Ann. St. 1906, p. 3843), providing for service of process on town mutual insurance companies by service on the president, secretary, or other chief officer in charge of the company's "principal" office, a return of service of process showing service on the secretary of the company in its "usual" business office and in charge thereof is insufficient to confer jurisdiction over the company, because the "usual" business office of the company

may be a place other than its "principal" office.

3. PROCESS (§ 155)—DEFECTIVE SERVICE—OBJECTIONS.

Where the return of service of process showed on its face that it was insufficient to confer jurisdiction over defendant, the court might disregard the matter when sought to be raised by an answer in the form of a plea in abatement.

4. APPEARANCE (§ 8)—VOLUNTARY APPEARANCE.

As a general rule, an answer to the merits operates as a voluntary appearance.

5. PLEADING (§ 107)—DEFECTS—MANNER OF RAISING.

Where the defect relied on in a special plea is one latent in the case, and does not appear on the face of the proceedings so as to be available by demurrer or motion, it may be raised by special plea in the answer.

6. PLEADING (§ 107)—DEFECTS—MANNER OF RAISING.

Where the defect relied on is latent in the case, and does not appear on the face of the proceedings so as to be available by demurrer or motion, a plea in bar in the answer raising the defect by special plea does not waive the question of plaintiff's right to proceed.

7. PLEADING (§ 406)—DEFECTS—WAIVER.

A defendant who fails to demur for a defect patent on the face of the petition thereby waives his right to complain thereof by answering over, provided the petition is sufficient to sustain the judgment when construed by allowing reasonable implications under the rule obtaining after verdict.

8. PROCESS (§ 166)—DEFECTIVE SERVICE— WAIVER.

Where the defect of jurisdiction over the person of defendant appears on the face of the return of service of process and is not challenged by motion to quash, defendant by answering to the merits waives its right to complain of the want of jurisdiction, though it also attempts to abate the action because of the defect by special plea reciting appearance for that purpose only.

9. INSURANCE (§ 634)—ACTION ON FIRE POLICY—PETITION.

A plaintiff, suing on a mutual fire policy stipulating that the amount of the loss shall be due 60 days after the ascertainment thereof, must in his petition state facts showing a determination of the character, amount, and extent of the loss 60 days before the institution of the suit.

10. PLEADING (§ 433)—DEFECTS—AIDER BY VERDICT.

Under Rev. St. 1899, § 672 (Ann. St. 1906, p. 686), providing that no judgment shall be reversed for the omission of any averment on account of which a demurrer could have been maintained, etc., a judgment on a fire policy stipulating that the amount of the loss shall be due 60 days after the ascertainment thereof will not be reversed for the insufficiency of the petition to specifically allege that an ascertainment of the loss was had 60 days before the institution of the suit, where it appears from the petition by reasonable implication that an ascertainment was in fact had 60 days before the institution of the suit.

11. PLEADING (§ 433)—DEFECTS—AIDER BY VERDICT—"PROOF."

A petition in an action on a fire policy stipulating that the amount of the loss shall be due 60 days after the ascertainment thereof, which alleges that the property was destroyed by fire on April 28th, that on May 20th plaintiff gave defendant notice and proof of the fire and loss and demanded payment, sufficiently shows, after verdict, the ascertainment of the loss 60 days before the institution of the suit, which was instituted more than 60 days after May 20th, the word "proof" meaning the degree of evidence which convinces the mind of any truth or fact and produces belief.

12. INSURANCE (§ 668)—FIRE INSURANCE— NOTICE OF LOSS.

Where the petition in an action on a town mutual fire policy does not indicate within what time notice of loss should be transmitted to insurer, the court could not declare as a matter of law that proof of a loss sustained April 28th was furnished too late when furnished May 20th, especially in view of the public policy indicated by Rev. St. 1899, § 7979 (Ann. St. 1906, p. 3793), providing that notice of loss may be given within 90 days after a loss, though such provision is inapplicable to town mutual companies by virtue of section 8084 (page 3840).

13. INSURANCE (§ 645)—FIRE INSURANCE— PETITION—PROOF.

A petition in an action on a fire policy which alleges that plaintiff has performed all of the conditions of the policy on his part is sufficient to permit proof of any and all forms of waiver by insurer.

14. APPEAL AND ERROR (§ 909)—REVIEW—PRESUMPTIONS IN AID OF JUDGMENT.

Where it was competent under the petition in an action on a fire policy to show waiver by insurer of notice of loss, it would be presumed in support of the judgment that a waiver was proved.

Appeal from Circuit Court, Bollinger County.

Action by N. C. Wicecarver against the Mercantile Town Mutual Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Barclay & Fauntleroy, for appellant. Chas. G. Revelle, for respondent.

NORTONI, J.

This is a suit on a policy of fire insurance issued to the plaintiff by the defendant, a town mutual fire insurance company. Plaintiff recovered, and defendant appeals.

The first question presented for consideration relates to the jurisdiction of the circuit court over the person of the defendant. The property insured was located in Bollinger county. Having been destroyed there by fire, the suit on the policy was instituted in the circuit court of that county. The defendant is a town mutual insurance company, organized and existing under the laws of this state, with its principal office in the city of St. Louis. Our statute (section 8092, Rev. St. 1899; Ann. St. 1906, p. 3843) touching the place for institution of suits against and the service of process upon town mutual insurance companies provides that suit may be brought on a policy issued by such companies in the circuit court of any county in the state where the cause of action originated, or in the county where the company issuing the policy has its principal office. The suit was therefore properly instituted in Bollinger county, where the cause of action originated, and the circuit court of that county was possessed of jurisdiction over the subject-matter thereof. As to the manner of acquiring jurisdiction over the person of the defendant in those cases where the suit is instituted in a county other than that in which the company maintains its principal office, the same section of the statute provides substantially that, whenever a suit is so instituted in a county other than that in which the company maintains its principal office, service may be had on the defendant by the acting sheriff of the county in which the company maintains its principal office serving on the president, secretary, or other chief officer of such company in charge of its principal office a certified copy of the original petition and summons in the cause. And if such company shall have its principal office in the city of St. Louis, then the acting sheriff of that city shall serve the process mentioned. The service, being had as indicated, shall be deemed service on the company proceeded against. The process, having been issued by the circuit court of Bollinger county, was transmitted to the acting sheriff of the city of St. Louis for service. The return of the sheriff on this writ shows that, instead of serving the same and a certified copy of the petition upon defendant's officer mentioned in charge of the principal office of the company, it was served upon or delivered to J. W. Daugherty, secretary of said defendant corporation, in the defendant's usual business office and in charge thereof, in the city of St. Louis. In response to the service, defendant appeared in the circuit court and filed its answer to the petition. The first paragraph of the answer, after reciting that defendant appeared for that purpose solely, contains a plea in abatement to the jurisdiction of the court over the person of the defendant, because service, as shown by the return, was insufficient to confer jurisdiction over the person of the defendant, and for that reason prayed that the cause should be abated. In the same answer, in the second count thereof, the defendant answered to the merits of the action by its general denial of all the allegations contained in the petition, and, further, denied specifically that it had executed the policy of insurance sued upon. The court, after hearing the matter on the plea in abatement, overruled the same, whereupon defendant's counsel, after saving exceptions to the ruling of the court, with the statement that they appeared for that purpose only, withdrew from further participation in the proceedings.

It is clear the sheriff's return failed to show the court had acquired jurisdiction of the person of the defendant. The statute required service to be had "upon the president or secretary or other chief officer in charge of the principal office of such company." Of course, service...