151 Pa. 101 | Pa. | 1892
Opinion by
The subject of complaint in the first and fourth specifications is the discharge of plaintiff’s rule to show cause why she should not have leave to amend the record by withdrawing her statement of claim filed May 9, 1889, and substituting in lieu thereof, the statement annexed to the rule and fully recited in the fourth specification.
We are not convinced that, in the circumstances, there was any error in discharging the rule. It is not even alleged that any of the averments contained íd the original statement, and omitted from the proposed amendment, were inserted by mistake, or that they are incorrect, or wholly irrelevant to the cause. It is merely claimed by the plaintiff that they are immaterial and unnecessary to a complete ex parte statement of her claim. A comparison of the two statements shows, among other things, that the original contains averments relating to
The statement which plaintiff proposes to substitute, in lieu of the original, contains none of the foregoing averments. The copy of insurance policy, referred to and made part of the statement, omits the indorsed receipt for the $3,096.50 paid by the defendant company on account of plaintiff’s claim. The proposed substitute also avers that plaintiff claims to recover from defendant $6000, the full amount of insurance, with interest, etc.
It may be that these omitted averments, etc., are not necessary to the plaintiff’s case. On the contrary, they may be, and perhaps are wholly unnecessary thereto; but if, in point of fact, they are true, and not wholly irrelevant to the cause, they may, as admissions of record, be advantageous to the defendant. It does not follow that because they are unnecessary to the plaintiff she has a right to withdraw them from the record. The poliejr of insurance, used for the purpose of charging defendant on its contract of indemnity, should correctly exhibit a copy of the indorsed receipt as a pro tanto discharge.
Under our statute, amendments are not always a matter of right. They are largely in the discretion of the trial judge. In this case no good reason appears to have been shown in support of the rule, and hence there was no error in discharging it. The first and fourth specifications are not sustained.
The second and third specifications complain of the judgment for defendant on the demurrer to plaintiff’s statement of claim.
When this cause was here before on defendant’s appeal from the judgment of the common pleas for want of a sufficient affidavit, the sole question was, whether, assuming the allegations of fact, contained in defendant’s affidavit in reply to the plaintiff’s demand, to be true, the latter was entitled to judgment. It was held that she was not, and accordingly the judgment
The third section of our procedure act of 1887 declares that in “the action of assumpsit and the action of trespass” the declaration “ shall consist of a concise statement of the plaintiff’s demand,” etc. It further declares: “ The statement shall be signed by the plaintiff or his attorney, and, in the action of assumpsit, shall be .replied to by affidavit.” When defendant company was required to make its reply to plaintiff’s statement, the first thing to be considered was the sufficiency of the statement. If deemed insufficient to maintain the suit, that ground of defence, at least, in the nature of a demurrer, should have been clearly disclosed in the reply, so that it might have been disposed of in limine. If well taken, it would have ended the case. Instead of that a general defence on the supposed merits of the case was interposed and we were called upon to say whether, assuming all the allegations of fact contained in the affidavit to be true, they constituted a good defence. Holding that they did, we reversed the judgment of the court below and returned the record with a procedendo. In effect, for the time being at least, the defendant then abandoned the defence set up in its affidavit, and upon which it had asked us to pass, and demurred to plaintiff’s statement of claim, and now we are passing on the sufficiency of that. We are unwilling to recognize this as proper practice.
In Barr v. McGary, 131 Pa. 406, our Brother Williams, after referring to the kind of statement required by the act, says : “ The defence must then be stated and verified by the oath of the defendant. This makes up the issue on which the case is to go to trial, and if the defence set out is insufficient to prevent a recovery, the plaintiff may ask judgment for want of a sufficient affidavit of defence,” etc.
But, aside from the error in practice above referred to, we think the defendant was not entitled to judgment on the demurrer. The case now presented by it is materially different from that before us on the former appeal. In the latter the allegations of fact contained in the defendant’s affidavit were
Judgment reversed, and an alias procedendo awarded.