*1 Company. v. Pickett 1900. contract, for an when there no implied make power to contract in the manner express of this case. Circuit Court is reversed and the remanded, case with to instructions sustain the demurrer and dismiss the complaint.
PICKETT, RECEIVER, AND CO. FIDELITY CASUALTY Supplemental Pleadings Appeal—Employee's 1. Insurance —Mo- — papers supplemental tion pleadings, leave to file must make prima showing occurring filing of facts pleading, since of first facie party knowledge, or of which then had no and order thereon will not discretion,
be reviewed unless there be an abuse of or some error of law, right impaired; substantial some lost or and here the agreement employer settling injured employee insured with contrary supported by to terms of is not the facts shown. proper
2. Practice —Receiver—Issues.—Rule is the Show Cause proceeding appointed to continue action in name of receiver to suc- deceased, ceed questions one defendant desires to contest appointment second, death first receiver and he should have rule, done return so on on motion to refer these issues. Charge. Stating jury adjudicated charge admitted or facts is not 3. — on facts. Employer pleadings Nonsuit —Insured —Receiver.—Under 4. evidence, ground nonsuit on is not an asset employer receiver, properly insured insolvent hands of refused. op Pleadings during change substantially trial as Amendment 5. defense, cannot allowed. Pleadings Insurance—Forfeiture.—Allegations complaint 6. — performed by all conditions of have been insured arid denial by answer, prove forfeiture, does not enable insurer to conditions of allege specifically must' but it all matters of forfeiture forgetfulness by party previously time of fact Mistake. —Mere against known cannot be relieved as mistake of fact. Employer's Policy Insurance —Insurance.—This construed to injury employees, insure from assured and hence injury insurer liable to assured for it
employee, although paid judgment, has and is insolvent
Argument of Counsel. *2 Rich., 178, Bauskett, pay. 10 McDonald be made to and cannot distinguished this.. from Pope dissent. Mr. Mr. McIver Chief Justice Justice 9. Rehearing petition. as to merits of Court is divided refused because 10. Affirmed. December, Charleston, Gage, J.,
Before
1899.
Pickett,
M. P.
insurance policy
on employer’s
Action
Co. against
the Charleston
receiver of
From judgment
York.
Co. of New
and Casualty
appeals.
defendant
for plaintiff,
Moffett,
Prror
cite:
Pitzsimons &
Messrs.
appellant,
discovered
to set up recently
to permit
defendant
refuse
good
answer constituting
supplemental
defense:
facts
16
41;
2
Hill,
S.
C., 101;
Speer,
Code,
195;
10 S.
194;
3
1
C.,
C.,
Ency.
C.,
18
341;
315;
S.
C.,
S.
117;
234;
S.
S3
32
How.,
Y.,
Rep.,
8
233;
56;
N.
P.,
P. & 518;
699.
3.St.
59
change
not substantially
shall
that amendment
Limitation
C.,
trial:
amendments
S.
does not apply
defense,
before
30
C.,
i;
C.,
C.,
S.
190;
S.
S.
C.,
397;
S.
564;
54
47
27
13
have
should
C.,
C.,
18
S.
318;
490;
S.
Defendant
451.
53
receivership:
question
in issue the
put
been permitted
not to
Prror
€.,
C.,
C.,
S.
274;
388;
S.
S.
391.
35
42
55
answer to
to amend
permit
facts
conform
defendant
P.
C.,
1
&
Ency.
Code,
C., 416;
90;
S.
proved:
194;
S.
55
51
can be
contract, and there
indemnity
is an
Policy
P.,
485.
has
it until
under
no recovery
2 N. &
Rich., 100;
Messrs. Bryan pur indefinite: C., are too S. Information 83. 52 479 1900. would to a sued lead is notice fact, C., S. 224. thereof: 52 Benet Order providing payment by defendant it, and consented R., zvas At. re binding: 503; 43 it can be had only C., case: ig S. 527; lief 24 C., 404; C., C., 612; C., Al- 4S2; S. S. S. S. 161. 35 34 40 lozvance an amendment with Circuit discretionary C., C., 22 Judge: C., C., 385; S. S. 57; S. 556; S. 41 41 38 'C., Rule to show 145; S. cause is proper practice continuance cause in name receiver: succeeding for 'Code, 142; C., R., R., 388; 301; S. E. S. E. time to No raise issue receiver appointment asked being trial for, proceeded C., C., with: 12 properly 174; *3 S. S. 13 C., 16 Motion to 491; S. amend pleading 235. conform proved cannot be entertained until are proved: facts facts C., C., 90; General denial in S. S. does not put 55 50 459. policy,
issue but such must be specially pleaded: forfeiture of C., R., 28 20 431; S. S. E. Construction record 754.
not on C., As charge C., 367, S. 218. 533; S. facts: 53 50 to mistake as a C., Bail. ground Eq-, 494; S. 46 defense: As to 228. the construction 10 policy: Ency., 402-3, Nev., Ill., 604; 1 4*5, 121; Y., 68 8 N. 4i7; 550; 4 4X3> Pr., 8; Cow., Den., 8 Wend., Abb. 623; 321; 8 423; 3 19 Wend., St., Watts, Pa. 452; S., 8 366; Watts & 157; 9 5 440; Rich., 2 2 80; Bay, Wis., Y.,N. 145; 17; 527; 78 103 Mass., 22 C., 16; 10 R., Mees & 1 380; S. Wells 295; 40 Hill, Y., R., N. 145; R., 420; W. 390; S. N. W. 41 63 65 Minn., 461; R., N. W. J 353 47.
This 12, was.filed March opinion but remittitur 1891, 21, on March until stayed 1901, 20,
April opinion the Court deliv- was ered
Mr. suit This what is known Justice Jones. an liability insurance employer’s and the herein appeal -a is from against insurer, defendant for the amount of policy.
Opinion the Court. C. Benet erred first is whether question presented 4, in his order of mo- February defendant’s 1899, refusing trial, before for leave serve amended and supple- tion answer, mental other proposed things, answer. The among be- avoidance of settlement the Charleston Basket and Veneer Company, tween whereby H. Farley, employee, and Charles employer, in- all claim against full paid Farley $500 receiver for for injury, sured its com- be rendered said might that said settlement was in the suit for said damages; pany vgedictin. Farley to- ¡I damage 'by prior agreed n Co., without the Charleston and Veneer defendant, and that defendant or consent knowledge orig- settlement at the time of .filing ignorant heard of same on Decem- herein, inal first having answer motion, sub- of his the defendant ber support under is contended the above effect. It mitted affidavits to motion should that the and second exceptions first uncontradicted affidavits refused, have “because the a com- that facts constituting of the motion showed support come to the knowledge action had just defense plete unknown to de- defendant, facts were and that said *4 means of knowing did have the fendant, and defendant not the a settlement of facts; fact was that secret such that the made, liability upon on had been no sued judgment be sustained. These cannot exceptions existed.” judgment the out that settlement the place, exceptions point the first in the case of the judgment was of the judgment, meaning the Charleston injured employee, the Farley, of the policy insured employer. Veneer the Sec. 4 not, own expense, at his except “the assured shall provides, in any nor interfere claim, nor incur expense, settle any any nor person, for settlement with injured negotiations company without the consent legal proceedings, any not does &c.” This writing, provision previously given a establishing final judgment relate to a settlement employer’s injured but relates employee, a such settlement of claim for before damages judgment as would effect the insured a right fair and full judicial investigation the claim for and was de- damages, signed prevent collusion between the insured employer the injured employee, to the prejudice of the insurer. Under this provision, illustration, the insured and the employer injured not employee may an agree upon amount as the dam- sustained, and ages seek to bind the insurer without his con- sent, insurer, since the has the policy, conduct right to and defend the suit for but we see no reason damages; why employer injured a for dam- employee, pending not that in the ages, may event of a agree after recovery investigation exceeding amount such policy, judg- ment shall be cancelled of the proceeds excess in the over the judgment amount shall remitted settled a sum. If specified such agree- ment could be sense a before final any judg- settlement ment, would not be a settlement of claim ex- at the insurer, since insurer is concerried with pense so much of the claim as final exceed the may upon The suit amount the policy. by Farley against Basket and Co. for Charleston Veneer
$10,000, was defended the defendant insur- vigorously in final in favor of and resulted ance company, The amount of the insurance policy for $3,510.50. Farley trial, the attor- 24, March before the On $1,500. Co. wrote to the for the Charleston Basket neys letter: the following of the defendant company attorneys had to express occasion previously We have “Gentlemen: if it be compromised, this case should our you opinion and since the a reasonable figure, can be done at receiver, our first opin- into the hands of has had to pass aware, are As confirmed. simply you subject ion on *5 of course, consent to the and of subject, approval with your concerned, I have clients, nego- far their interest is so as your settlement, I concluded arrange- and have to a tiated looking 31—60 v.
Opinion of the Court. ments whereby will plaintiff full of accept settlement his claim the sum of $1,500, provided the same is settled at once. is, Your course, liable primarily up but that $1,500, recognizing would not you will- naturally ing compromise for the full amount of your we liability, are to contribute willing towards this settlement one-third thereof, we, therefore, and namely, $500; that trust will you conform to this and settlement, to the agree compromise $1,000. If this, then, do not see fit to do you so far as why, our concerned, client is we shall consider at ourselves liberty to make a settlement our lia- any arrangements looking to over and above as bility yours we deem inter- may best to our est. We have said that if always there was any liability all, the in- amount would be far excess of the amount of and for this reason have we always anxious to settle this matter and have out of our way.” defendant, To this letter the their through attorneys, to make the settlement. promptly replied, declining By March, letter the defendant as company, 1896, early informed of the intention of the Charleston Basket and Veneer Co. to make itself arrangements protect so much of the claim or to be rendered thereon as It further be- exceeded amount of policy. appeared motion complaint fore the Judge hearing answer, on the 18th order January, 1898, following the defendant in- with the written consent of passed, thereon, in case H. Charles- dorsed of Charles Farley Co., in the case A. Robb ton Basket of W. Basket and Veneer Co.: to the sat- Charleston “It appearing Court that in the first entitled cause the isfaction of the judg- been affirmed by ment recovered Court below has and that the issued Court, No. Supreme York Charleston Co. of New Casualty and Veneer on the day April, 1895, pro- 19th hundred dollars in case of vides for the payment ñfteen H. Far- its Charles employees; accident action, was, in the first entitled during ley, plaintiff *6 Fidelity Company. Pickett existence of such policy, injured of the said employ Co., Charleston Basket and and is entitled to what- ever amount be may paid tinder the policy aforesaid; and whereas, the amount due and under payable said is the dollars, sum of hundred and M. P. Pickett heretofore fifteen has been appointed receiver of the 'Charleston Basket and cause, Veneer Co. in the last entitled and has yet and it further discharged; that the said appearing Fidelity and Co. is Casualty prepared sum of pay $1,500 upon and being fully completely from all discharged liability Now, therefore, premises. on of T. Moultrie motion Mordecai, receiver, Pickett, Esq., M. P. attorney it is ordered, said upon Co. of Casualty New receiver, York over unto M. P. paying Pickett, the sum of dollars, hundred there be delivered up to the said fifteen company the said insurance No. 48390, receipted in full by Pickett, receiver; said M. P. and that re- said ceiver, upon the of the receipt said do over the $1,500, pay same the said Charles H. or his Farley, attorney; upon Co. over Casualty Fidelitv the said sum of paying receiver, to the said it be money from all further discharged reason of its by issued said having and that the said receiver upon over the said turning $1,500 said Charles H. or his Farley, he be attorney, discharged receiver of Charleston Basket and Veneer an exoneratin' entered his Benet, bond. W. C.
First Circuit.” order, it, This least of say wholly inconsistent with affidavit submitted a defendant of by between the settlement Charleston Basket and Veneer Co. before Farley violation of the judgment, f.or $500 is the
policy. prima of that showing contrary facie claimed appellant. The refusal of a motion to file answer is within the supplemental ordinarily discretion of Court, the Circuit and will reversed this Court ex- not.be discretion, abuse or unless the cept Court’s action was some controlled error of law, unless some substantial lost right thereby impaired. motion papers of the
Opinion Court. C.S. leave to file a under sec. supplemental pleading, Code, must, least, make a of facts prima showing facie material or defense have occurred after the to the case former or of which when pleading, party ignorant *7 the the former was made. view of foregoing, pleading leave order to we see no said ground reversing refusing file the answer. supplemental is whether Judge
2. The next matter to be considered 2, December his order of 1899, committed error by Gage in the Gilliland, receiver, as plaintiff, D. B. substituting deceased, and Pickett, P. receiver now of M. former place Gilliland, in the of said the action name continuing a rule to show based upon 23 receiver. This order was cause, return of defendant thereto. and the the the in in the return that “the which only way was made point supplemental complaint duly can be continued is by cause in The rule to There no error the order. served.” was in continue action procedure cause was a proper show receiver. of the former the name of successor Sec. Carson, C., Sar Durham v. 388; Code. S. DeLoach fact If to contest the C., defendant wished ratt, 254. ap and the fact of'the the former receiver of the death of issue should have successor, as of Gilliland pointment third return the rule. The exception raised in so, also, the fourth be therefore, overruled; must must, the case to in of error overruled, complains forcing ques in issue the put defendant trial without permitting Gilliland; must be and likewise receivership tion of the ninth which complains exception, overruled appellant’s them, in facts saying on the jury charged the successor of action as B. “Now, 'brings D. Gilliland com basket first receiver Pickett. Pickett B. stands died, place D. Gilliland he and now pany; the basket place company.” Pickett and the issue, in but to the were jury The facts stated facts, and so the adjudicated charge admitted or were facts, as the Constitution. in prohibited was not respect 1900. Term. in There was no error the motion for non- overruling suit, in fifth as contention complained exception. that there was a total failure of evidence to show is an Basket and Co. sued asset Veneer
policy foundation, alleges is without as the complaint This and the answer admits and delivering the execution to the Charleston Gilliland, B. to the D. according testimony asset of receiver, and was the his possession only his possession. error in refus- exceptions The-sixth and eighth assign facts motion defendant’s the pleadings conform ing testi- appeared the contention that it proved, being consum- of Mr. Mordecai that an had been mony agreement compro- had been mated which the damage *8 constituted mised, compromise which agreement 5 first a on. In the sued' complete defense did not appear as the trial such facts Judge, stated place, by next have allowed In the testimony. place, in of trial the policy, such breach setting up amendment during defense, is not which have substantially changed would Stevens, 21 sec. of the Code. by Whaley authorized 194 S.C., 221. in out striking error imputing The seventh exception, a the policy, upon to show breach of testimony
all going out pleadings, that such testimony grounds whereas, in that all conditions complaint it is alleged which allega- had performed, duly a de- answer. defendant’s tion was denied Such in insur- a suit on an does a require plaintiff nial in refer- the conditions with prove compliance ance policy It is a case. plaintiff’s part ence forfeitures any to specificallyallege insurer when sued incumbent on the As- relied on. v. Western matter forfeiture Copeland C., absence of allegation surance forfeiture, a breach of a condition in the answer alleging Fideeity
Opinion of the Court. it was not error to strike testimony, out any, tending show such forfeiture.
6. The twelfth and thirteenth exceptions relate to the con sent order above, and copied bemay considered together. are as They follows: “XII. His Honor in erred charging ,as on the consent order follows: ‘There is no in contention here the insurance pleadings that it without consideration.’ We submit that it was in the answer and proved by uncontradicted the ‘consent testimony mistake, order was a signed by a which mistake disclosed total failure of be consideration and consequent cause XIII. insolvency non-liability.’ His Honor erred consent order: ‘If a charging contract, had he made but knowledge facts when a party fact, for the moment when he made over it had forgotten it, looked that not a him such mistake as law will relieve * * * therefore, if a ag'ainst these ever knew de parties answer, fense they set their the insol up wit: basket and veneer but vency company, temporarily are, contract, and made the forgot they notwithstanding, ”it.’ bound In his overruled charge jury a judg contention that said consent was final plaintiff’s order ment, and could not set aside a motion in except by cause, but instructed the said consent order was jury that contract Then between the he used parties. language to in the There error excepted twelfth was no exception. *9 was, fact, in this, as there in no contention pleadings said consent order without consideration. The answer was order, the consent but “that admitted making order was consented to a mistake on its through part, this the fact insolvency defendant overlooked of the having Co., said Charleston Basket and and non-pay Veneer non-liability ment and of said of this defend ant under its said reason thereof.” reference policy by defense, the in thir complained to this Judge charged see in teenth no error in this. As held exception.- We C., relieve Coates & v. in order to Early, Sons mistake, of an it honest must consequences party shown that the other to the contract in some way party that the the mistake mistake, caused party making this could not due have avoided it. Under by diligence fact one of a known momentary by principle, forgetfulness Besides, is not as mistake. in this case the party relievable order itself was sufficient to defendant notice put upon Co., Basket and Veneer of the Charleston insolvency for was entitled creditor’s suit of A. W. Robb for provided pay- Charleston Basket and Veneer Basket and ment to the receiver said Charleston resulted further, Co. But still no harm could have possibly since, ap- to the defendant as will more fully charge, Basket and hereafter, the the Charleston pear insolvency of Veneer Co. is no action. defense to this The raise the whether exceptions question remaining
7th. final of defendant under arises liability in favor of the the suit injured' employee of said in whole or upon payment part or damages, only no “it makes Court jury The judgment. charged ever or not the basket company difference whether loss; if their men all out a dollar at on one paid that debt their to pay injured liability re- is fixed final then the entitled plaintiff judgment, The involves construction cover.” raised question liability an “Employer’s called policy. Co., “agree By Casualty its terms policy.” ***Co. and Veneer the Charleston Basket indemnify fatal or non-fatal account of on against liability any employee employees suffered injuries accidently and in the occu- at the places of the assured while engaged * * * agree- to the following subject mentioned pation we note these conditions and conditions.” Among ments re- accident “1. company’s following: limited person the death of one injuries sulting to the same subject hundred dollars fifteen ($1,500), for a result- casualty limit for each its person; gross liability *10 Opinion of the Court. to or death ing injury of several is persons ten thou- * * *
sand dollars If ($10,000) thereafter any legal 3. are taken proceedings against assured to enforce a claim on account of such accident, the company will same, defend the cost, its own in the name and on behalf of the assured. not, The assured shall at his except own cost, settle claim, nor incur any nor interfere in expense, any negotiations settlement with nor injured person, in any legal without the proceedings, consent company, previously given in but he imme- writing; may such provide diate surgical relief as be imperative. The assured may shall render to the all company securing aid reasonable * * * information and evidence, and in settlements. effecting 12. No action shall lie after ‘against company ex- piration period which an within for damages action on account or death be given injury brought by might assured, such claimant or his un- representative against less at the of said there is a out expiration period arising suit assured, of such accident in which case pending against an action claim involved in may respect brought such action assured thirty within company suit, after final days is rendered such and not ** * it, later. This application taken to- hereupon, indorsed copy application declarations, all gether, stipulations, with their respective conditions, of insurance be- parts and constitute a contract tween the assured; and the the suit is contract, on must be brought constructed accordingly, whether such on brought original contract or on any renewal thereof.”
We do not construe this contract of mere insurance as a contract of loss or but a con- indemnity against damage, tract to In 16 Am. protect liability. & Ency. E. Law, ed., 2d correct rule is thus stated: “Where contract is one the indemnitee cannot strictly indemnity, recover until he has suffered actual the mere loss damage; gives him but where the no such incurring right; *11 Company. 489 Pickett v. contract to indemnitee protect against' liability, may upon recover it as soon as his has become fixed and liability established, even he has loss though sustained no actual or time when he seeks recover.” In the case damage Gervais, 2 v. which a motion to set Ramsay Bay, 145, aside a rendered in a a of indemnity suit oh bond to-save an from all conse- indorser harmless and the indorse- and which arise from quences might ment, that, the in- it was held after obligee- protest, to- the indorsed note compelled bond was demnity pay Bellune In the case indemnity before on the bond. suing Rich., 80, a v. 2 which was Wallace, obligation, a the principal’s to indemnify surety against conditioned the indem- bond, it was 'held that default on a guardianship actually before he has sue for breach of condition nitée might Newell, in the case of v. Beasley loss. And sustained any as the C., 22, Mclver, Mr. Chief organ Justice Ander- Thankersley Court; since the case said: “Ever law of settled son, DeSaus., it has been 44, regarded or col- State, a other who holds surety mortgage him loss him to indemnify security given lateral mort- enforce such of his may proceed reason suretyship, and as he becomes endangered as soon security, or other gage become he has of the debt before actual payment kinds of settled rule regard This well surety.” cited, cases Court before the indemnity obligations us, before contract the insurance may well applied and not indemnity expressly against where reason of liability. loss merely against Rich., cited Bauskett, of McDonald v.
The case The bond to conflict with the foregoing. does not appellant, exonerate, and case “to discharge, in that surety to pay and all liability him from against any indemnify thereof, expense cost or any part mortgage, take the covenant and agree thereon. And we hereby our- M., and obligate shoes of the stand place him to repay selves jointly severally refund Opinion of the Court.
him amount whatever he have to may on said pay bond and And for mortgage. the faithful performance of this cove- nant and obligation we hereby jointly bind severally ourselves, &c.” The Court, while that the first recognizing covenant contained in the obligation, when taken separately, seemed to bind the defendants to indemnify against liability *12 to the pay held that instrument, the mortgage, as when taken a whole, bemay fairly construed to be an to in- obligation the demnify all obligee against which come to damages may him from the surety The obligations. second part the italicized, which have obligation, we well be construed might as explaining the first modifying part, meaning which, unrestricted, would mean indemnity against liability and not indemnity loss reason by liability. other cases cited from our by appellant own need reports detail, in noticed as it will be sufficient to do say they not conflict with the stated in cited principles the other cases in this The contract in is not all am- opinion. question It is This biguous. indemnity liability. expressly attaches when the of the liability employee’s amount damage consent, by the with agreed upon parties, the insurer’s when there is final judgment of the in- fixing liability sured injured In this there employer employee. case was a final insured for more than judgment employee the amount of the insurance, and suit by was defended for in the One of the company, provided policy. objects provision defense of authorizing insurer, to be made from damages by taking interference, insurer, insured all enable the was right to if the insured em- possible, prevent any liability against which the insurer was and this ployer, was liability against contest was issued. If the insurer meant stipulate payment a condi- rendered in the suit the judgment damages say policy, tion on the recovery easy precedent is forbidden to settle the contrary, so. On the insured in claim for or interfere legal proceedings Fidelity 491 and is his barred of action suit not liability, ascertain involved,” “in to the claim respect damage brought after in suit within final such suit. days thirty like this or one jurisdictions other substantially in it, has been considered and construed accordance with Fordyce, Co. v. Casualty view. foregoing 41 Anoka Co. v. Reporter, 42; S. W. Lumber A., also, R. Co., W., N. Casualty 355; reported, L. 30 65 Corpora Haven v. Assurance Employers’ Liability 689; A., Fenton v. Casu tion, N. R. 388; W. Rep., 47; L. Law, ed., A., II. R.
alty 770; Ency. L. Court, equal Circuit reason of Court, this stands
division of affirmed. I cannot con- dissenting. McIver, Mr. Chile Justice reached Mr. cur the conclusion Justice Jones case; I from and more but as cannot now the time other spare I am duties why official to state the reasons
pressing *13 concur, I at present unable must content myself dissent, however, with a to myself, simple reserving future time. my to set forth reasons some fully right only question dissenting. Pope, Mr. Justice error I desire is as to the alleged to express opinion motion the Circuit of defendant Judge denying answer, in out by proper setting its proposed supplemental answer of de- the fact that since the original allegations filed, Charleston had it was discovered that the fendant C. H. all the claims of had Basket and Veneer Co. settled and Veneer Co. on Basket said Charleston Farley against Basket Charleston Farley said against judgment, In my for the sum of and Veneer $500. re- only Co. should of the Basket Veneer
the receiver Co. Casuality the contract cover under from lia- Co. Charleston indemnify Far- the said whom to its injuries employees bility —of it is it; and suffered injury was one—the amount leyr had to Farley .(which was such injury that only alleged $500 Bridge Company. IyOCKWooD Syllabus.
been actually otherwise, To hold paid). it me, seems to would be a sound public it would legalize the effort of the Charleston Basket and Veneer toCo. collect from the as an defendant indemnifier loss three times amount as such actually paid loss. Inasmuch as the defendant, its motion to be to file a allowed supplemental answer, and amended matter to seeking this 'bring Court, attention of the it was error in the Circuit Judge refuse this course, motion. Of Circuit erred matter, all that was done afterwards was erroneous. think, therefore,
I below should be reversed cause be remanded to Court, the Circuit direc- with tions allow in the answer. proposed change
Petition was filed March, 1901, 21st rehearing thereon the order was filed following April 1901: divided, after a Court being equally
PER Curiam. consideration, careful it follows necessarily petition therefore,
fails. , ordered, It is that this petition 10 dismissed and stay remittitur heretofore be revoked.
granted LOCKWOOD CO. CHARLESTON BRIDGE Pleadings Complaint.—An substantially chang- — Amendment ing complaint, a cause of action in a is not error. *14 within a Circuit Ibid.' —Answer—-Service.—It discretion of require complaint an answer to be served to an amended days. twenty 167, applies only Code, less than where no time is in the order. fixed Complaint—Judicial Pleadings Ibid.— Notice.— Construction — liberally construed, complaint alleging under rule must be corporate service, time existence of defendant and that negligently managed property before,
its servants its some months impliedly alleges corporate accident, its time existence at ownership by corporation allegations these from