Neimick v. American Insurance

16 Mont. 318 | Mont. | 1895

Pemberton, C. J.

The appellant contends that the general verdict is not inconsistent with the special findings, and that the court erred in so holding.

The plaintiff alleges in his complaint an understanding or agreement with defendant’s agents that he might increase his insurance on the property to the sum of §3,600. This the defendant denied. This issue was included in the special findings submitted to the jury. They found that there was no such understanding or agreement. If there was no such agreement, plaintiff, it is conceded, could not recover. The general verdict for plaintiff was necessarily inconsistent with the special findings that no such agreement was entered into between the parties.

The plaintiff, after defendant had moved the court for judgment on the special findings, asked leave to file amendments to his complaint, to the effect that defendant’s agents had knowledge of this additional insurance, irrespective of said agreement, on the property, before its destruction, and made no objection thereto. Counsel for plaindff contends that there was evidence of such knowledge, and that he was entitled to amend his complaint in conformance therewith. He contends also that this made an issue not covered by the special findings, and on which the jury might have found their general verdict; and, if so, he says the court erred in setting aside the general verdict, and rendering judgment on the special findings.

We think this amendment inconsistent with the agreement alleged in the complaint as a basis of plaintiff’s right to recover in the case. And, furthermore, if the plaintiff desired to avail himself of the right to so amend, he should have made his offer at the close of the testimony, and asked for a finding thereon. When he offered his amendment the verdict and findings had been made and returned, the jury had been discharged, and the court was considering a motion for judgment on the verdict and findings. We are unabie to discover any abuse of discretion on the part of the trial court in disallowing the amendment. It seems to us, from a careful consideration of the record, that the case was fairly tried on the pleadings and evidence, and a proper result reached.

The judgment is affirmed.

Affirmed.

De Witt, J., concurs. Hunt, J., having presided at the trial of this suit, takes no part in the decision.