
    Troy Automobile Exchange, Respondent, v. The Home Insurance Company, Appellant.
    Third Department,
    November 11, 1914.
    Trial-— practice — motion to dismiss complaint — failure to specify defect in pleading — when defect not available upon appeal.
    A general motion for a nonsuit on the ground that the plaintiff has not proved a cause of action is without force on an appeal unless some particular defect is pointed out or unless the defect actually existing is such that the omission could not have been supplied if attention had been called to it..
    Thus, where the complaint in an action on an insurance policy was defective in that through clerical error the loss was stated to have taken place before the policy went into effect and the defendant throughout the trial did not point out the particular defect, but merely made general motions for a nonsuit upon the ground that no cause of action has been proven against defendant under the terms of the policy set out in the complaint, the defect is not available upon appeal and the court will affirm a judgment for the plaintiff.
    Appeal by the defendant, The Home Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 13th day of March, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of March, 1914, denying the defendant’s motion for a new trial made upon the minutes.
    
      Shaw, Bailey & Murphy [Edward Murphy, 2d., of counsel], for the appellant.
    
      John F. Murray and William H. Murray, for the respondent.
   Kellogg, J.:

The action was brought to recover upon a policy of insurance on the ground that the plaintiff’s machine was stolen, and while illegally used by the person taking it was destroyed. The car had been taken to a paint shop for painting and while there the brother of the painter asked plaintiff for permission to use the car, which was declined. ¡Nevertheless the brother and others used the car and it was destroyed by accident while they were so using it. The question litigated was,. in substance, whether the painter stole the car or whether it was the act of the brother. The policy insured against theft by any person other than those in the employment, service or household of the insured. The question was closely tried and was submitted to the jury and the jury found in favor of the plaintiff. The verdict is satisfactory upon the evidence.

The appellant, upon the argument here, seeks to introduce another element into the case which at the trial was overlooked by all, or if known to the appellant was carefully suppressed by it. The policy is an open policy and provides that it shall be in such sum. and for such periods of time as may be shown in the certificate issued in connection with it. The complaint alleges, among other things, that on the 18th day of August, 1913, for a good and valuable consideration paid, the defendant made and delivered to the plaintiff its policy of insurance and also its certificate annexed to the policy “wherein and whereby the said defendant did insure this plaintiff to the amount of $1,000 from the 30th day of September, 1913, to the 30th day of October, 1913,” upon the automobile, and that upon the 29th day of August, 1913, the car was stolen. Manifestly the complaint, read literally, does not allege a cause of action. While the collision took place after the issuing of the policy, it appears that the insurance was not effective until after the collision. If, however, a demurrer had been taken to the complaint, or the defect therein pointed out upon the trial, the plaintiff might have amended by correcting the dates if error existed with reference to them. If such amendment were not made judgment would have passed as a matter of course against the plaintiff for a moderate amount of costs, and the expense of the trial and this appeal would have been avoided.

The defendant demanded a bill of particulars with eleven specifications, eight of which were material only on the question whether the car was stolen by the painter or his brother. A bill of particulars was given with details as to each requirement.

The defendant interposed an answer expressly admitting the allegations of the complaint as to the policy, denying that the automobile was stolen or was taken without the plaintiff’s consent, or that it was damaged while being driven without plaintiff’s consent; also denying that it was damaged while used without the plaintiff’s consent, and sets up that upon a preliminary examination before a magistrate charging the theft of the automobile the magistrate determined that no crime had been committed.

At the beginning of the trial the defendant moved to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, without referring to any particular defect in the complaint, which motion was denied. Plaintiff offered in evidence the policy; the defendant objected that there is no issue in reference to the existence of the policy as every allegation in the complaint with reference to it is admitted, and that it would be prejudicial to have it in evidence so long as there is no issue about it. The court, however, received it. The defendant then asked the court to rule that the introduction of the policy should not in any way vary or change the issues that are presented by the pleadings as they exist. The court granted the request.

• The proofs of loss were offered in evidence. Among other things they stated that the automobile, while insured by the defendant under its policy, was stolen from the possession of the painter who was painting it. The defendant admitted the fact that the proofs were served and that the company refused to pay, and continued: “and there being no question raised in reference to it, I object to the paper being admitted in evidence on the grounds before stated.” They were received in evidence. The plaintiff then proved the facts and circumstances with reference to the alleged larceny of the machine and the witnesses were closely cross-examined on the subject. The defendant moved for a nonsuit at the close of the plaintiff’s case on the ground that the pretended cause of action alleged in the complaint has not been established and upon the ground that no cause of action has been established. The motion was denied.

The defendant then offered in evidence the proceedings before the magistrate upon a criminal complaint that the car had been stolen. Defendant then called three witnesses and recalled one of the plaintiff’s witnesses and examined them at length concerning the alleged larceny of the car. At the close of the testimony the defendant moved to strike from the evidence the proofs of loss. The motion was denied. We quote from the record: “Mr. Bailey: I ask that the proofs of loss he limited so as not to be taken to in any way change the issues presented by the pleadings in this action. The Court: I don’t know what you mean by that and therefore it is difficult for me to rule upon it. What is in the proofs of loss that could change it. Mr. Bailey: I am not familiar with it, but I want a ruling to the effect asked; I can’t point out the particular details as I am not familiar with the paper. The Court: I will give you that ruling, for whatever it means. • I don’t know what it means. Plaintiff excepted. Mr. Bailey: I move fora nonsuit upon the ground that the pretended cause of action set up in the complaint has not been'proved, and upon the ground that no cause -of action has been proven as against the defendant under the terms of the policy set out in the complaint. Motion denied, defendant excepted. Mr. Bailey: I ask the court to grant a nonsuit upon the further ground that there is no question of fact here to submit to the jury. It appears exactly what took place, and as a matter of fact the undisputed evidence as to what took place shows that this car was not stolen even by Howe, to whose acts the plaintiff is limited in the action. Motion denied, defendant excepted.”

Counsel for the plaintiff and defendant then addressed the jury. In its charge the court stated: “ Gentlemen of the jury: There are two or three phases of this case concerning which you need give yourselves no concern. The defendant insured the plaintiff. The plaintiff owned the car. The car was damaged. The damage was $1,000. If the plaintiff is entitled to recover, he is entitled to recover $1,000. If he does not recover $1,000, he is not entitled to recover anything. It is either one thing or the other. If the policy is good, it is good for $1,000. The policy in its form is correct. The policy is good provided the contingency happened as against which the policy was issued. That contingency is stated in a very few words, and that is all there is of this case so far as you are concerned, viz.: Whether the loss or damage to that car was occasioned by theft by any person other than one in the employ of the plaintiff. Did any one who was not in the employ of the plaintiff steal that car ? Did any one commit a theft ? If ally one not in the employ of the plaintiff committed the theft, stole that car, then the defendant is liable. Therefore, you will have to address yourselves to the question entirely as to whether there was a theft. When you have decided that you have decided the case.”

To this part Of the charge the defendant’s counsel, who was present, took no exception. He, however, made, special requests to chargé and took several exceptions to the charge as bearing upon the issue of whether the car was stolen, it apparently being assumed by counsel upon both sides that that was the only question.

Upon this appeal the defendant raises as a first point that the motions for a dismissal of the complaint' should have been granted, but without any suggestion that the policy was not in force at the time of the loss or that the complaint was deficient in that respect. The other points raised by him relate entirely to the stealing of the car and to the effect of the examination before the magistrate on the criminal examination. In closing his brief, in general terms, he claims that no cause of action was alleged or proved, but without specifying any failure in that respect. The respondent served his brief, to which the appellant served a reply, in which reply he foreshadows for the first time that the loss as alleged in the complaint took place at a time when the policy was not in force, and for that defect and failure of proof in that respect the plaintiff could not recover.

A general motion for a nonsuit that a plaintiff has not proved a cause of action is without force on an appeal unless some particular defect is pointed out, or unless the defect actually existing is such that the omission could not have been supplied if attention had been called to it. ■ An action upon a promissory note may be sharply litigated as to whether the indorser ever signed the note and whether the nóte had any validity, that being the only issue tried. It is t&o late for the defendant upon appeal to raise the question that there was a failure of proof of protest of the fióte and that thfe question was raised by his motion fór a nonsuit in alleging that the plaintiff had not proved a cause of action. In an action for conversion, where a sharp issue is tried upon other questions and there is an absence of proof of a demand, the plaintiff upon appeal is not in a position to claim a reversal because no demand was shown and that the question was raised by his motion for a nonsuit on the ground that the plaintiff had not proved a cause of action. These defects, if raised upon the trial, could have been remedied, and the defendant by not raising them is held to have waived them. (Bromley v. Miles, 51 App. Div. 95, 96.) In this case it cannot be contended that the court would have held for a moment that the insurance company was liable to pay for a loss occurring August thirtieth when its policy did not insure the property until after September thirtieth. If this question can now be urged as ground for reversal, the trial was a farce and the court and the opposing counsel were imposed upon. A mere.suggestion of the defect would have ended the case, or would have led to an amendment by supplying the correct dates. The defendant retained the proofs of loss which alleged that the property was insured at the time of the fire; the court in substance stated that the policy covered the loss if the loss occurred by theft, and there was but one question in the case, and by silence the defendant consented that such was the fact. When the defendant made its motion to limit the effect of the proofs of loss the court stated that it did not understand what the defendant meant, and the defendant gave no information as to his meaning. From the conduct of the trial it must be assumed that a clerical error was made in the complaint with respect to the time when the policy became in force, or that after the fire the open policy by a certificate was made to cover another machine, and the plaintiff’s counsel had overlooked that fact. There was no reason why the point should have been kept in the background if the defendant did not know that it could be cured by amendment. The case shows a deliberate intent to keep from the counsel of the plaintiff and the court the technical point and to use it on appeal if the defendant was defeated upon the merits. The object of a trial in court is to enable the court and the jury to ascertain the facts and to decide the rights of the respective parties on the matters actually litigated. A party who is defeated apon a trial cannot upon appeal obtain a reversal upon a point which was not raised, or if raised was presented in such a way that no one but himself understood it. Counsel must act with the utmost good faith towards the court and must present the questions he relies upon and not in a studied way conceal them. We conclude that the only question in the case is whether the car was stolen. No other question was litigated. The attention of the court was called to no other question, and the court expressly stated to the jury that that was the only question and the defendant by its silence assented to it. Upon a trial the parties may deliberately go outside of the pleadings and try a question not raised thereby and may disregard questions raised by the pleadings. Upon appeal from a judgment resulting from such trial the court will only review the questions litigated below and will consider that questions not litigated or passed upon at the trial were waived in cases where the defects might have been corrected by amendment or proof. The appeal is to review the course and conduct of the trial and brings up for review only questions decided in the trial court. If a party conceals from the court a question, or permits the trial to proceed upon the theory that the question is not in the case, he is not in a position to ask a reversal of a judgment which is just and fair considering the course and manner of the trial.

We quote from Schoepflin v. Coffey (162 N. Y. 12, 16): We have, however, searched the record in vain to find any proper objection or exception which enables the defendant upon this appeal to avail himself of the insufficiency of the complaint. To raise that question it was necessary that an objection to its sufficiency should have been taken, and the ground upon which it was claimed to be insufficient should have been brought to the attention of the court. It is not á fatal objection on appear that the cause was tried outside the pleadings in the absence of some specific objection to that course. Parties may, if they so elect, depart from the issues made by the pleadings and try other questions relating to the merits of the controversy by consent or acquiescence. (Farmers’ L. & T. Co. v. Housatonic R. R. Co., 152 N. Y. 251.) As the question of the sufficiency of the complaint was not properly raised in the court below, it cannot be raised here for the first time.”

The appellate court is required by section 1317 of the Code of Civil Procedure to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties. The question now raised is purely technical so far as it affects the question actually litigated and determined upon the trial. The determination made by the court and jury upon the questions actually litigated present no ground for reversal. The judgment and order should, therefore, be affirmed, with costs.

All concurred.

Judgment and order unanimously affirmed, with costs.  