
    State Automobile Mutual Ins. Co. v. Robinette, Admr.
    
      (Decided November 15, 1933.)
    
      Messrs. Andrews, Rogers & Scott and Mr. H. F. Holscher, for plaintiff in error.
    
      Mr. G. W. Elliott and Mr. Henderson Estes, for defendant in error.
   Boss, J.

This is a proceeding in error to reverse a judgment of the Court of Common Pleas of Butler county, rendered in favor of Pearl Bobinette, administrator, the plaintiff in that court.

The action is predicated upon ,Section 9510-4, General Code, covering the method of applying the “insurance money provided for in the contract of insurance” between an insurance company and one against whom judgment has been rendered for injuries or death caused by the vehicle insured.

It is alleged that Pearl Bobinette, Jr., was killed by an automobile operated by Anderson Jones, on November 25, 1930, and that:

“On or about the first day of December, 1929, the defendant Anderson Jones, being then the holder of a policy of insurance issued by the defendant The State Automobile Mutual Insurance Company, insuring him against loss by reason of personal injuries or death that might be caused by the operation of the automobile of the said Anderson Jones, entered into an agreement with the defendant, The State Automobile Mutual Insurance Company, whereby, in consideration of the promise of the said Anderson Jones to pay the usual and customary premium therefor upon receipt of a bill or statement of such premium, the defendant The State Automobile Mutual Insurance Company undertook and agreed to and with the said Anderson Jones' to issue to him a new policy of insurance of the date of expiration of said policy then in existence, insuring him for the year next ensuing from said date against loss by reason of bodily injury or death caused to any person by reason of the operation of said automobile, and other hazards insured against in the policy of the said Anderson Jones then in existence, at or before the expiration of the said policy of insurance then in existence, without any further application or act upon the part of the said Anderson Jones.
“By virtue of the contract aforesaid, the defendant The State Automobile Mutual Insurance Company insured said Anderson Jones and his said automobile against the hazards aforesaid for a period beginning at the expiration of said previous policy, including the 25th day of November, 1930, but after receiving notice of the death hereinafter mentioned, refused to deliver to the said Anderson Jones the new policy.”

It is further alleged that the insurance company “repudiated said contract of insurance” and that the amount of money “provided for in the contract of insurance aforesaid” was $5,000.

The answer of the insurance company was a general denial.

The case was tried to a court and jury. At the close of the evidence of plaintiff, both parties made motions for judgment. The court discharged the jury and rendered judgment for the plaintiff. The insurance company made no reservation in its motion and tendered no evidence.

The first assignment of error is based upon the contention that the petition states no cause of action.

It is conceded by both parties that if the petition merely states a cause of action, predicated upon a contract to issue a policy, or in other words, a contract to make a contract of insurance, the petition is defective. It is conceded as well that a verbal contract of insurance is valid. Hartford Fire Ins. Co. v. Whitman, 75 Ohio St., 312, 79 N. E., 459, 9 Ann. Cas., 218; Goodman, a Minor, v. Royal Indemnity Co., 24 Ohio App., 357, 157 N. E., 311.

It must be admitted that the petition is inartistically drawn. Language conld have been employed which would have made the allegation of a contract much clearer. ' Such criticisms, however, are not equal to a fatal defect in pleading.

Section 11345, General Code, provides: “The allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties.”

In the case of Nott v. Johnson, 7 Ohio St., 270, it is stated in the second paragraph of the syllabus: “Every reasonable presumption and fair constructive intendment will be made to sustain the pleading after verdict.”

It must be remembered that no motion to make definite and certain was filed, nor any demurrer, and that the matter comes up first on motion for judgment.

The record shows further that the evidence of plaintiff was offered in support of the contract of insurance, without objection that such evidence was not competent under the allegations of the petition.

In Younger & Farmer Co. v. Halliday, 107 Ohio St., 431, 140 N. E., 340, the second paragraph of the syllabus reads: “Where a case is tried upon a given theory, and evidence is introduced pro and con upon such theory without objection, it is too late after trial and judgment to raise the question for the first time whether the pleadings warrant such a theory.”

It is apparent that the plaintiff was endeavoring to state that he had a contract of insurance, and produced his proof accordingly. In Bethel v. Woodworth, 11 Ohio St., 393, it is held in the second and third paragraphs of the syllabus:

' “That a defective statement in the petition of the cause of action, is not a cause for reversal of the judgment, if the facts stated in the petition, when well stated constitute a cause of action.
‘ ‘ That the verdict or finding of the court after judgment is always presumed to have been on proof of the alleged facts and necessary circumstances to sustain the truth of such verdict or finding, upon which the judgment has been so rendered.”

A particularly good statement of the present attitude of courts toward liberal construction of pleadings is found in Stoutenburg v. Lybrand, 13 Ohio St., 228, at page 233, and we quote from this as follows: ‘ ‘ The answer does contain what was no doubt intended as a statement of such facts; but objection is taken to the mode of statement; because, as to some of them, the averments are not direct as to the existence of the facts, but only as to the defendant’s information and belief of their truth; and, as to another, that it is not a statement of fact, but of a conclusion of law. The strictness of the common law rules of pleading would unquestionably condemn such an answer, upon demurrer. But the code has abolished the former rules of pleading, and prescribed, in their stead, others, essentially different. Under the code, demurrers go to the substance and not to the form of pleadings. If a pleading, liberally construed, sets out a sufficient cause of action or defense, though it may be defectively stated, a demurrer to it will not lie. Objection to defects extending only to the mode of statement must be taken by motion. The code requires the allegations of a pleading to be expressed in ordinary language, and in determining their sufficiency, these allegations are to be liberally construed, with a view to substantial justice between the parties.” See, also, Acton & Woodnutt v. Knowles, 14 Ohio St., 18.

Again, in the case of Everett v. Waymire, 30 Ohio St., 308, it is stated in the second paragraph of the syllabus: “A general demurrer to an answer for want of facts sufficient to constitute a valid defense, will not be sustained when the facts in the answer, if well stated, would constitute a sufficient defense. It is the office of a motion, and not of a demurrer, to make a pleading more definite and certain.”

In McCurdy v. Baughman, 43 Ohio St., 78, 1 N. E., 93, it is field tfiat: “Pleadings, under tfie present system, must be fairly and reasonably, not strictly, construed.”

In Valley Ry. Co. v. Lake Erie Iron Co., 46 Ohio St., 44, 18 N. E., 486, 1 L. R. A., 412, tfie court fiolds in syllabus 1: “Indefiniteness in pleading sfiould be taken advantage of by motion and not by demurrer; so tfiat, where tfie language of a pleading will fairly admit of a construction tfiat will sustain it as against a demurrer, it sfiould, in tfie absence of a motion to make definite and certain, be so construed.” See, also, Green v. Carter, Treas., 28 Ohio App., 492, 162 N. E., 814; Baumann, Exrx., v. Mangold, 32 Ohio App., 419, 168 N. E., 217; Lowell v. Superior-Third Realty Co., 34 Ohio App., 128, 170 N. E., 185; Kolberg v. Central Fruit & Grocery Co., 37 Ohio App., 64, 174 N. E., 144; Fulton, Supt. of Banks, v. Ferguson, 44 Ohio App., 365, 185 N. E., 887.

Tfie defendant fias a complete remedy against indefinite pleading in Section 11336, General Code. If fie fails to avail himself of such rights as are therein conferred, fie cannot later complain tfiat a court extends to the pleading tfie limit of favorable interpretation of tfie language used.

Plaintiff in error urges tfiat it seasonably advanced its objection to tfie petition in its motion for an instructed verdict and in its motion for a new trial.

We feel tfiat tfie fair construction to be drawn from tfie authorities noted, supra, is tfiat, if a party resorts to tfie means employed herein, having failed to attack tfie petition by motion or demurrer, or objection to tfie evidence, tfie petition must stand, unless under favorable construction it wholly fails to state a cause of action. Only by applying strict technical rules of construction would the petition in the instant case so fail.

An examination of the evidence shows enough to justify the court in its conclusion that a contract of insurance existed covering the loss insured against in the contract.

In the other assignments of error advanced we find the intervention of no error prejudicial to plaintiff in error which would require a reversal of the judgment. It is therefore affirmed.

Judgment affirmed.

Hamilton, P. J., and Guernsey, J., of the Third Appellate District, sitting by designation, concur.  