Todd v. Quaker City Mutual Fire Insurance

9 Pa. Super. 381 | Pa. Super. Ct. | 1899

Opinion by

Oblady, J.,

At the conclusion of the trial of this cause and before it was submitted to the jury, the plaintiff moved for leave to amend her statement, which concluded, viz: “Yet the defendant has not paid to the plaintiff the said sum of money by it insured, nor repaid nor reimbursed her for the loss sustained by the said fire or any part thereof,” by inserting immediately preceding the part quoted, the folio whig, “Whereupon the said defendant company then and there promised to pay to the said plaintiff the sum of four hundred dollars being the amount of said insurance.” The evidence was all in and the amendment was urged so as to make the statement conform to the proof adduced, and in regard to which the court was specially requested to refer to the jury the facts in the second point submitted by the plaintiff, viz: “That if the jury believe from the evidence that'A. T. Cross, secretary, treasurer and member of the executive committee of the defendant company, settled, adjusted and agreed to pay the loss upon the stable and structures insured in the policy in sui t on or about July 30, 1896, at the sum of four hundred dollars. That this would constitute a waiver of all the conditions now set up by the company as a defense in this action and your verdict should be for the plaintiff.” The court negatived the point, and refused to allow the amendment for the reason that it was made too late. If the court erred in refusing to allow the plaintiff to amend, it may be treated by this court as having been allowed — Trainor v. Pa. R. R. Co., 137 Pa. 148; Kroegher v. McConway, 149 Pa. 444 and the appellee admits that it is utterly immaterial, so far as his contention is concerned, whether the amendment was allowed or not. It is not claimed that the amendment changed the cause of action, nor ,do we think it did. The cause of action was founded upon the refusal of the defendant company to pay the loss occasioned by the fire. The object of the amendment was not to forsake this but to adhere to it, and to effect a recovery through the promise of the defendant to do what it was bound to do, if the evidence of plaintiff was to be believed, after its liability had been fixed by the fire and the plaintiff had fully complied with her subsequent duty. A proper amendment may be allowed at any stage of the proceeding in the court below and if improperly refused it will be allowed on appeal in the appellate court. When the merits of the case cannot otherwise be reached it is the duty of the court to permit the amendment: Erie City Iron Works v. Barber, 118 Pa. 6. If the amendment had been allowed the defendant could have alleged surprise at the changed issue and have applied for a continuance, but the amendment was refused and the trial proceeded to a verdict in favor of the defendant.

In Clymer v. Thomas, 7 S. & R. 177, the motion to amend -the declaration was made after the jury was sworn, but the court refused to permit the amendment and the jury found a verdict for the defendant. The Supreme Court by Tilghman, C. J., says: “ Where the court has a discretion to permit or refuse an amendment, no exception lies to its opinion. This is the case of all amendments at common law, and some of the amendments by statute .... But the case before us is not an amendment at common law, or one in which the court was at liberty to exercise its discretion. It was the right of the plaintiff, under the act of the 21st of March, 1806, sec. 6, by which it is enacted, that where it appears to the court, that there is an informality in the declaration or pleadings, which will affect the merits of the cause, the plaintiff shall be permitted to amend his declaration or statement, and the defendant may alter his plea or .defense on or before the trial of the cause; and if, by such alteration and amendment, the adverse party is taken by surprise the trial shall be postponed to the next court. ... It appears to us, therefore, to fall directly within the provision of the act, and consequently, the amendment was not matter of favor or discretion, but of right,” and the judgment was reversed.

Amendments under the act of 1806 being prescribed bylaw, arc not discretionary but mandatory, and therefore subject to writs of error: Newlin v. Palmer, 11 S. & R. 98; Hopkins v. Mehaffey, 11 S. & R. 126; Sharp v. Sharp, 13 S. & R. 444; Yost v. Eby, 23 Pa. 327.

In Franklin v. Mackey, 16 S. & R. 117, the Supreme Court says : “ It appears to be the intent of the act, to allow amendments on the trial without stint as to number. This seems to be conceded by counsel for defendant in error, but they argue that the amendment here proposed was such, in itself, as is not permitted by the act; because it in a matter of substance, contradicts the writ, changes the contract and brings in a new cause of action. They also insist upon the plain words of the act of assembly; and say that the word informality, is the only term used in the law, describing what may be amended on the trial. It is so, — informality, is the word in the law; yet it appears to me, that were we to hold matters of mere form only to be amendable after the jury is sworn, we should go far towards declaring this part of the act useless. Matters of mere forms in the record, are not often inquired into before the jury. Besides, the very next words of the act seem to show the meaning of the legislature ; for it must be absolutely impossible for the adverse party to be taken by surprise, b} an amendment which does not touch the merits or substance of a cause.” In Knapp v. Hartung, 73 Pa. 290, a declaration was permitted to be amended by adding two additional counts which charged a tresx^ass on another close of the plaintiff and for taking additional property, and it was held not to change the cause of action. Amendments should be liberally allowed; and the test of their propriety is whether they introduce a new cause of action. The shape testimony may assume afterwards on the trial is not the test of the propriety of the amendment, — the testimony is ruled by the narr. If that contains a new cause of action, the testimony cannot be allowed to prove any such if objected to: Steffy v. Carpenter, 37 Pa. 41; Trego v. Lewis, 58 Pa. 463. In Erie City Iron Works v. Barber, 118 Pa. 6, an illustration is taken from Rodrigue v. Curcier, 15 S. & R. 81, which is pertinent to the case before us: “ So in an action on a policy of insurance, when the plaintiff declared on losses by capture by an enemy and perils of the sea, the court permitted an amendment, by adding a count for loss by barratry. This might be called a new cause of action, but it adhered to the policy by which the defendants engaged to indemnify the plaintiff from loss by barratry, as well as by capture and by perils of the sea. The object of the action was to recover for a loss covered by the policy, and this amendment, not going out of the policy was admitted.”

While the cause of action was not changed, and the amendment was fully justified by the evidence adduced by the plaintiff, the application of the evidence to the disputed facts was materially changed, as it reduced the controversy to the one vital question, whether there had been an adjustment and settlement of the loss by a duly authorized representative of the defendant company, followed by a promise to pay the loss so ascertained; and plaintiff’s first and second points should have been affirmed without the qualifications added by the trial judge, and the point submitted by the defendant should have been refused for the reasons given in Todd v. Quaker City Mutual Fire Insurance Company, No. 38, March term, 1898, filed with this case.

Nor do we think that because the amount which the defendant promised to pay was the same as the amount of the policy, is at all material. The compromise of a doubtful or contingent liability is a good consideration for a promise to pay without regard to the sum finally agreed to, as it often happens that the sum in controversy is but a small share of the actual cost of maintaining or defending the claim. Prompt and liberal settlements of honest insurance losses are evidence of fair dealing and provident management, and are of themselves potent arguments in favor of the company pursuing such a course, while unfair litigation and sharp practices are as certain arguments against the honesty and good repute of a company. The costs, expenses, loss of time, and many other elements may make it profitable to pay the whole demand rather than to incur the many risks incident to litigation. This case is a fair illustration, as each of the parties will have reasonably expended over one half of the alleged compromise amount for items which are not taxable as costs, without regard to which one may ultimately succeed.

The first, third, fifth, sixth and seventh assignments of error are sustained. The judgment is reversed, and a venire facias de novo awarded.