Wright v. Fire Ins. Ass'n of London

• Decision Date: 15 September 1892
• Citation: 31 P. 87,12 Mont. 474
• Parties: WRIGHT v. FIRE INS. ASS'N OF LONDON.
• Court: Montana Supreme Court

31 P. 87

12 Mont. 474

WRIGHT v. FIRE INS. ASS'N OF LONDON.

Supreme Court of Montana

September 15, 1892

Appeal from district court, Custer county; GEORGE R. MILBURN, Judge.

Action by Eva Styles Wright against the Fire Insurance Association of London, England, to recover on an insurance policy issued to plaintiff by defendant. From a judgment in favor of defendant, entered upon a nonsuit, plaintiff appeals. Reversed.

E. P Cadwell, for appellant.

Kinsley & Blackford, for respondent.

HARWOOD J.

This action is founded upon a policy of insurance, whereby defendant agreed, on certain conditions, to indemnify plaintiff against loss by the injury or destruction of certain described property by fire, to the value thereof, not exceeding $1,500, which property is alleged to have been totally destroyed by fire; and this action is brought to recover said sum. At the trial, when plaintiff rested in the introduction of testimony to sustain her cause of action defendant moved the court for nonsuit, which motion was granted, and judgment was thereupon entered in favor of defendant, from which plaintiff appealed, and assigns the action of the court in ordering the nonsuit as error. The motion specified several grounds for nonsuit, but, upon the hearing of this appeal, counsel for respondent concede in their brief and argument that "there are properly but three questions involved in this case, and upon which the court acted in granting the nonsuit."

The first point insisted upon to support the motion for nonsuit is that "plaintiff's pleadings fail to state a cause of action against defendant." No particular defects in the pleadings are specified in the motion under this proposition, and for that reason the point was undoubtedly disregarded by the court below in passing upon the motion. McGarrity v. Byington, 12 Cal. 426; Sanchez v Neary, 41 Cal. 485; People v. Banvard, 27 Cal. 470; Coffey v. Greenfield, 62 Cal. 602. Upon the argument of this appeal, however, respondent's counsel contend that plaintiff's pleadings are defective, in that "it nowhere appears that anything was ever due at any time to plaintiff from defendant," citing Doyle v. Insurance Co., 44 Cal. 265. From reading that case, we infer that defendant's counsel claim the case at bar was prematurely commenced, or, in other words, that the claim of plaintiff had not matured for action when suit was commenced. The reasoning of the case just cited has no application to this action. By the terms of the policy before us, the loss is payable 60 days after proofs of loss have been made. The complaint alleges that proofs of loss were rendered to defendant, at its office in Chicago, on the 14th day of June, 1887; and further alleges that on the 21st day of July, 1887, "the said defendant declined and refused to pay said loss, or any portion thereof, denying all liability under said policy; and plaintiff further alleges that no part of said loss has been paid." The record before us does not show at what date the suit was brought, in the first instance. The pleadings here are amended pleadings, filed at a date subsequent to the commencement of the action, and there is no showing as to the date of the commencement of the action by the filing of the original complaint. Moreover, this is a mere dilatory objection, interposed several years after the cause of action, if there be any, matured, and after defendant had answered, and failed to take advantage of it, either by demurrer or answer. For these reasons the objection, if properly made, should have been disregarded at the trial, as waived, and in no manner affecting the substantial rights of the parties.

The next point urged as sufficient ground for nonsuit is that "defendant is sued as a corporation, when it is in fact a limited copartnership." Neither the trial court nor this court has any knowledge, by proper showing, that defendant is "a limited copartnership," instead of a corporate body, except the mere assertion of appellant's counsel to that effect. In the body of the complaint, it is averred that defendant is a corporation organized and existing, as plaintiff is informed and believes, under the laws of England. Defendant was sued in the name in which it transacts business. It appeared and answered, and, as to the allegation characterizing it as a corporation, it denied "that defendant is or ever was a corporation organized and existing under the laws of England." That is all defendant stated in its pleadings as to the character of its organization and existence. Standing without the assistance of any allegation as to the nature of the association combined and doing business under the name which defendant bears, the denial quoted above is pregnant with the admission that defendant is a corporation. The denial barely amounts to a contradiction of the averment that defendant is a corporation organized and existing under the laws of England. It might be true that defendant was a corporation, although not organized and existing under the laws of England. The denial is obnoxious to the form of good pleading,--Bliss, Code, Pl. (2d Ed.) 332,--and will therefore be disregarded. If defendant is not a corporation, but a copartnership, as its counsel now assert, it is not shown that any substantial right of defendant is affected by the misdescription of the character of its organization. There is no pretense to that effect. Whether defendant's existence depends upon corporate functions or copartnership association, in either case it is liable in the common name in which it transacted business, and in which it is sued, for any judgment which may be obtained against it in the action; and the property owned by the association, in the common name, whether it exists as a corporation or copartnership, is liable to answer for such judgment. Code Civil Proc. § 25. If defendant is infact a copartnership, those associated therein would be liable severally, and in a different degree, to plaintiff, for the payment of any judgment obtained in this action, than the same parties would be if concerned in defendant as a corporation; and if defendant, and those engaged in business in its name, desired their legal status to be known, and to be proceeded against in that relation, they should show forth the nature of their organization, without equivocation or evasion, and in such a manner as that the court could take notice of the fact.

We now come to the only substantial proposition specified as ground for granting the nonsuit. The policy sued on covered various classes of property, such as household furniture, wearing apparel, silver and plated ware, printed books, pictures and works of art, store fixtures, consisting of show cases, hat cases, shelving, counters, etc., with a specified amount of insurance placed on each of those classes of property severally. In addition to that property, and the several amounts stated thereon, there was $800 of insurance placed upon plaintiff's "stock of millinery and dressmaking materials," in the same policy. All of said property was situate in a two-story building, described in the policy, and all was destroyed by fire within the period covered by said insurance contract. Said policy contains a stipulation that it shall be void and of no effect "if the property be a stock of merchandise, and the same or any part thereof be or become mortgaged," unless consent in writing is indorsed by the company on the policy. It is shown that at the time the insurance was effected a chattel mortgage existed, executed by plaintiff to D. B. Fisk & Co., of Chicago, Ill., on her "stock of millinery goods and show cases, shelving, etc.," to secure the payment of $414 from plaintiff to said Fisk & Co.; and it appears to be conceded that said millinery goods were the same as mentioned in the policy. In answer to the complaint, defendant alleges that, in obtaining said contract of insurance, plaintiff "covenanted and agreed that her application, statement, and representation in procuring said insurance should be considered a part of said contract and her warranty, and that any concealment or omission to make known every fact material to the risk, either verbally or in writing, should render said policy void; and plaintiff covenanted and agreed that if she was not the sole and unconditional owner of the property, or if the property be a stock of merchandise, and the same or any part thereof be or become mortgaged or otherwise incumbered, then said policy should be void and of no effect, unless consent in writing was indorsed by this defendant on said policy, consenting to insure a stock of merchandise mortgaged or otherwise incumbered;" and that, when plaintiff applied for said insurance, said stock of merchandise was incumbered by a chattel mortgage, describing the same as above. Plaintiff, by replication, met this defense by averments as follows: "Plaintiff further states, by way of further reply to the defense set up in defendant's answer, that the defendant is estopped and ought not to be heard to allege or attempt to prove that the property covered by said contract of insurance, or any part thereof, was, at the time said contract was issued, covered by a chattel mortgage, or any incumbrance whatever, to D. B. Fisk & Co., of Chicago, Ill., or any other place, or to any one else; for that this plaintiff made no written or verbal application to the defendant herein for said contract of insurance; neither did she make any representation or statement to it whatever; neither did the defendant, or said agent who solicited said insurance, make any inquiry as to chattel mortgage on said property, or any portion thereof; neither did plaintiff have any information from said agent, or any one else, that if said property, or any part thereof, was...