Wright v. . Insurance Co. , 138 N.C. 488 ( 1905 )

Walker, J.,

after stating tbe case: It must be conceded that if in any view of tbe testimony, considered in tbe most favorable light for him, the plaintiff was entitled to recover, there was error in tbe ruling of» tbe court. Counsel in their arguments and .briefs discussed principally the question Avbetber, if tbe plaintiff bad failed to show a transfer of tbe insurance from tbe tobacco to tbe machinery, there were sufficient allegations in tbe complaint to entitle him to recover for the loss of tbe tobacco or any part of it. It may be granted that tbe plaintiff failed to show any transfer of tbe insurance from tbe tobacco to tbe machinery and yet, this being so, the insurance of course remained upon tbe tobacco, and he is entitled to recover for any loss sustained by its destruction to tbe amount of tbe policy and to tbe extent that be lias 'acquired his alleged assignor’s right or interest. It is very true that tbe complaint seems to have been drawn by tbe pleader for tbe purpose of recovering for tbe loss of tbe machinery, but this fact does not defeat the plaintiff’s right to recover for the loss of the tobacco if the allegations of the complaint are otherwise sufficient for that purpose.

The common law rule that every pleading shall be construed against the pleader is modified by the present Code system which requires that all pleadings shall be liberally construed with a view of substantial justice between the parties. Code, sec. 260. If the complaint is merely defective in form but a cause of action is stated in substance or by reasonable intendment, the defendant waives the defect by answering to the merits, and it is cured by verdict and sometimes by averments in the answer. TVhen the defect is organic and vital, so that it cannot be cured by amendment, it is not waived by pleading over or by verdict, and it can be taken advantage of even in this court. Harrison v. Garrett, 132 N. C., 172. Even where a material allegation is omitted, it is a defective statement of a cause of action merely and not a statement of a defective cause of action. Johnson v. Finch, 93 N. C., 205; Garrett v. Trotter, 65 N. C., 430; Bank v. Cocke, 127 N. C., 467.

In the case at har, the plaintiff alleges the issuing of the policy and the loss of the property insured. Upon these aver-ments he might recover (if otherwise entitled) the value of the property destroyed by -fire, not exceeding the amount of the policy. The only allegation omitted is the one as to the. value of the property insured at the time of the fire. But even if this allegation is essential to the statement of a complete and perfect cause of action, its omission is but a defect which can be cured by amendment and is waived by answer, as much so as the omission to allege the determination of the former action in a suit for false arrest, which was the defect in Johnson v. Finch, sufra. The mere fact that the plaintiff sought to recover for the loss of the machinery, does not prevent the application of that principle to this case. In Stokes v. Taylor, 104 N. C., 394, it was held that where a plaintiff sues upon a special'contract and fails in bis proof, be may nevertheless recover upon a quantum meruit if sufficient facts are alleged upon wbicb to base sucb a recovery, and this can be done without amendment. Jones vs Mial, 82 N. C., 252. Under the present system of pleading and practice, any relief may be granted wbicb is consistent with the case made by the complaint and embraced within the issue, although other and different relief may be sought by the pleader and demanded in the prayer for judgment. Clark’s Code, sec. 425, and notes. Any and all defects in the pleadings and proceedings which do not affect the substantial rights of the adverse party shall be disregarded in every stage of the action, and no judgment shall be reversed or affected by reason of the same. Clark’s Code, sec. 216, and notes. The plaintiff cannot of course sue upon one contract and prove another and essentially different contract. This is more than a mere variance; it is a failure of proof. But if he sues for specific relief, to which he is not entitled, upon facts which show him entitled to other and different relief,, he may be adjudged to have that relief to which he is in law entitled.

We do not understand it to be seriously questioned that, if there are sufficient allegations, the plaintiff can recover for the loss of the tobacco, although he evidently sued for the loss of the machinery; but it is insisted that he has not made sufficient allegations for that purpose, as the value of the tobacco at the time of the fire is not stated. In Jones v. Ins. Co., 55 Mo., 342, where the plaintiff sued on a policy and failed to state the value of the property destroyed, the court held that averments substantially like those in this case were sufficient as to the value of the property. “These averments of value and loss,” says the court, “would seem to be sufficient after verdict. That the property insured was totally destroyed by fire would seem to be a distinct averment of loss to the value of the property. That an insurance was given on this property to the amount of $1,200 would strongly imply that, in the estimation of the underwriters, it was at least worth as much as that or more.” To the same effect is Lane v. Insurance Co., 12 Mo., 44, in which the court also says that the defendant should have taken advantage of the alleged -defect by special demurrer, which we know was always directed against the form of the declaration, as framed in violation of some rule of pleading, and not against the substance of the declaration, as disclosing a case insufficient on the merits. Stephen on Pleading (9 Am. Ed.), pp. 44, 140; Ins. Co. v. Seitz, 4 Watts & Serg., 273; Ins. Co. v. Cornick, 24 Ill., 463. Discussing a similar question in Wright v. Williams, 20 Hun., at 326, the court says: “Suffice it at present to say that an actual total loss is averred and that a cause of action for some amount is fairly deducible from the complaint as thus framed.” See also May on Insurance (4 Ed.), sec. 590. The rules of pleading may require that an allegation of the value of the property at the time of the fire should have been made, and also that the plaintiff should have inserted two counts or causes of action in his complaint, one for the loss of the tobacco and the other for the machinery; but these are mere defects of form, which should have been pointed out by motion to make the pleading more definite and certain, or by demurrer, as may have been proper. The defendant preferred to answer and the plaintiff there upon tendered issues, not only as to the machinery, but as to the tobacco. It was announced by the court that the issues would be settled at the close of the testimony. There certainly was nothing in the evidence adduced by the plaintiff that affected his right to the issue as to the tobacco, but, on the contrary, there was direct proof of the insurance of the tobacco and its loss by fire and of its value, and there was no objection to this evidence by the defendant. His Honor could have ordered the complaint to be made more definite and certain if “the precise nature of the charge was not apparent” (Code, sec. 261), so that the allegations might in all respects correspond with the proof, but he erred in summarily dismissing the action without submitting issues to the jury and trying the case upon its real merits, especially when there was a sufficient allegation in the complaint of the right to recover for the loss of the tobacco, although imperfectly made. McKinnon v. McIntosh, 98 N. C., 89. The insertion of the claim for the machinery which proved to be unfounded and which could not be made to answer a useful pur - pose will be disregarded and not allowed to vitiate the preceding good averment as to the tobacco from which the insurance is alleged to have been transferred. Ulile per inutile non vitiatur. If the transfer was invalid, the insurance still rested on the tobacco, and this appears reasonably and by the clearest intendment from the pleadings. The defendant was aware of it, as it admitted the original insurance of the tobacco and denied the validity of the transfer. It followed necessarily that the tobacco was insured. How then could the defendant have been surprised or misled? The plaintiff on his present complaint can recover “such damages as by law he may be entitled to, unless he chooses to aslc for and is allowed an amendment.” Jones v. Mial, supra. The rights of the insured, under a policy of this kind, have not been discussed, as they are fully considered and decided in Lockhart v. Cooper, 81 N. C., 149, and as the argument of counsel was mainly addressed to the other question.

New Trial.