I disagree with the majority in that part of the opinion which affirms the ruling of the circuit court in allowing *Page 349 and sustaining a motion in arrest of judgment. I think to do so is contrary to well-known principles of pleading as well as the express words of the statute. In the trial court a plea was filed by the defendant to the effect there was a provision in the policy of insurance made in consideration of reduced premium, which excused liability under certain conditions. This was designated as "farmer endorsement," which in effect provided a change of occupation would relieve the insurer of liability.
The plea alleged: (a) That on the occasion of the accident the insured was using the automobile in selling cattle in his capacity of a salesman of cattle for a cattle company; (b) that after the issuance of the policy and before the accident the insured was employed by the cattle company, and acted as such salesman, whereby the policy of insurance became of no effect. Issue was had upon this plea and a verdict rendered.
It is unnecessary to go into the details of the various proceedings after the verdict other than to say it was appealed to the Appellate Court and then to the Supreme Court, and then back to the circuit court, where for the first time the sufficiency of the plea was questioned by motion in arrest of judgment. The circuit court allowed the motion; the Appellate Court reversed the circuit court, and by the present opinion we hold the plea of the defendant was subject to arrest of judgment after it had remained unquestioned in all of the foregoing.
Section 42 of the Civil Practice Act provides: "(1) If any pleading is insufficient in substance or form the court may order a fuller or more particular statement; * * *. (2) No pleading shall be deemed bad in substance which shall contain such information as shall reasonably inform the opposite party of the nature of the claim or defense which he is called upon to meet." Certainly, the plea in this instance told the plaintiff that they were relying upon a provision in the policy which prohibited a farmer from *Page 350 acting as a cattle salesman, and that he was so acting at the time of the accident. It may well be that the plea was insufficient and contained conclusions, and was possibly subject to demurrer. Section 42, however, defines substance as being something that reasonably informs the other side of the defense. It is only for want of substance, viz., — want of a cause of action or defense that the motion in arrest of judgment is available; and if section 42 contained nothing more than that quoted above the pleading would comply with the statute in containing matter of substance.
However, section 42 does not stop at this stage, but further provides: "(3) All defects in pleadings, either in form or substance, not objected to in the trial court, shall be deemed to be waived." Language could hardly be clearer to indicate that no defect, even in matter of substance, not raised in the trial court can be further questioned. I think, however, that the matter is specifically covered by the provisions of the chapter of the statute on Amendments and Jeofails, chapter 7, which is not repealed by the Civil Practice Act. Section 6 of this act provides: "Judgment shall not be arrested or stayed after verdict, nor shall any judgment upon verdict or finding by the court, or upon confession nil dicit * * * or upon any writ of inquiry of damages be reversed, impaired, or in any way affected, by reason of any of the following imperfections, omissions, defects, matters or things in the process, pleadings, proceedings or records, namely: * * * Fifth — For any mispleading, insufficient pleading, lack of color, miscontinuance, discontinuance or misjoining of the issue, or want of a joinder of the issue. * * * Ninth — For the want of any allegation or averment on account of which omission a motion raising an objection to such omission in the pleading could have been maintained."
While it is true under the old Practice Act and the earlier decisions resting on the common law many judgments *Page 351 have been arrested for defects in pleading, yet, it would seem that we are controlled by the present Civil Practice Act, which, taken in conjunction with the provisions of the statute on Amendments and Jeofails pointed out above would indicate that a motion in arrest of judgment should not be granted after a verdict is reached, and certainly not if it had been in different courts of appeal over a period of years.
Mr. JUSTICE FULTON joins in the foregoing dissenting opinion.
Mr. JUSTICE WILSON, also dissenting.