Jones v. St. Joseph Fire & Marine Insurance

Napton, Judge,

delivered the opinion of the court.

Since this case came here by appeal, an amendment nunc pro tunc of the judgment originally entered was made in the Circuit Court, correcting errors in the original entry made by the clerk. This was done on motion after due notice to the opposite party; and the correction having been ordered and made* we w-ill presume that the court had sufficient evidence in its records to authorize the change in the entry; and the objection now taken, that the court had no power, after the case was brought here by appeal or writ of error to make an entry nunc pro tunc, has been heretofore considered and determined otherwise by this court, on the authorities cited. (DeKalb Co. vs. Hixon, 44 Mo., 342 . )

The action was on a policy of insurance to recover the amount insured on account of the destruction of a house by fire. An answer was filed to the petition, and a replication filed to the answer, but on the day set for the trial the de *345 fendant did not appear and the case was tried by the court ex parte plaintiff, and a verdict given and judgment for the plaintiff. Subsequently a motion was made by the defendant to set aside this verdict, on the ground that one of the defendant’s attorneys died shortly before the term of the court, and his partner was sick at his home in Chillicothe at the day of trial, and .could not attend to the case, but the court overruled the motion. It was also urged, that the court had no power to try the case, as the defendant did not waive his right to a jury. Both grounds were decided insufficient and a new trial refused. The defendant also moved in arrest on the ground that the petition did not state any cause of action, which was also overruled, and the case is brought here for review.

It was a matter of discretion .with the court to set aside the verdict, for the causes alleged in the affidavits and motion of defendant, and we cannot see that it was improperly exercised. It does not appear that there would have been any difficulty in defendants employing other counsel. In regard to the waiver of a jury trial the statute seems to be very plain. See. 14 says, “parties to an issue of fact shall be deemed to have waived a trial by jury in. the following cases: First, by foiling to appear at the trial,” etc. The cases of Benton vs. Lindell, ( 10 Mo., 557 ,) and Pratt vs. Carl, ( 9 Mo., 164 ;) are decisions under our statutes when they were materially different from the present. As to the motion in arrest on account of the petition not stating facts sufficient to constitute a cause of action, it was properly overruled.

.The objections to the petition are, that it nowhere alleges the value of the property insured, or that it was of any value, or that its destruction was any damage to plaintiff. The petition alleges that defendant undertook to insure the plaintiff against any loss by fire to the amount of $1200, on certain property described, and that by said policy the defendant promised to make good unto plaintiff all such loss and damage sustained by plaintiff as should happen by fire to the property insured, to be paid within sixty days after proof of *346 loss and due notice. It is further stated that on the 20th of October, 1871, the said property so insured by defendant and at said date owned by plaintiff was totally destroyed by fire. That he forthwith gave notice, etc., and delivered a particular account of loss, etc., and performed all the conditions on his part to be done, etc.,

These averments of value andloss 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 amount of the value of the property. That an insurance was given on this property to the amount of $1200, would strongly imply that, at least in the estimation of the underwriters, it was at least worth as much as that or more.

¥e think the petition good after verdict, and therefore affirm the judgment.

The other judges concur.