81 P. 461 | Kan. | 1905
The opinion of the court was delivered by
This action was brought on a policy of insurance issued to Belle Washington and P. A. Webster insuring two frame residences situated in the city of Ottawa, and the furniture in one of the residences, against loss by fire. The residence containing the furniture was destroyed. Mrs. Washington and Mrs. Webster brought their action on this policy.
It developed during the trial that Mrs. Washington was the owner of the real estate, and had no interest whatever in the personal property, and that Mrs. Webster was the owner of the personal property, and had no interest whatever in the real estate. When the evidence had all been introduced the defendant asked permission to amend its answer and set up the facts thus disclosed, which was refused. Thereupon
The plaintiff in error makes the following assignments of error: (1) The refusal to permit it to amend its answer; (2) that the judgment for attorney’s fees was excessive; (3) that there was a misjoinder of plaintiffs.
Granting leave to amend a pleading pending a trial is largely within the discretion of the trial judge. It appears from the evidence in the record that immediately after the insured property was destroyed the defendant’s adjuster called on Mrs. Webster to ascertain the extent of the loss, and was then informed, by her that she owned the personal property and Mrs. Washington owned the real estate and that the latter lived in California. He then requested Mrs. Webster to get a power of attorney from her and the claims would be settled. The power of attorney was procured as requested, appointing Mrs. Webster agent to settle with the company for the loss in the house. The power of attorney was delivered to the company before the action was begun. The company had, therefore, full knowledge of the interest each of the plaintiffs had in the insured property. With this knowledge it should have raised the question of misjoinder by answer. It cannot be said that the court abused its discretion in refusing to permit defendant, after going through the trial, so to amend its answer and allege new matter that was within its knowledge when it filed its answer. If there was a misjoinder the defendant could waive it and try the cause, and that appears to be what it did. Again, it does not appear that the defendant made any application to the court to render separate judgments or that any objections were made to the rendition of a joint judgment.
It is contended that the amount allowed for attorney’s fees was excessive; that such amount was so
The judgment is affirmed.