Susquehanna Mutual Fire Insurance v. Clinger , 10 Pa. Super. 92 ( 1899 )

Opinión by

Berber, J.,

On April 7, 1885, the plaintiff issued a summons in assumpsit against defendant, "returnable April 27, 1885, and on the same day in which the writ issued it filed what purported to be a copy of its claim. On April 27, the return day of the writ, two counsel entered their appearance for the defendant. On May 12, 1885, defendant filed his affidavit of defense to the whole of the plaintiff’s claim in which he said that he was not indebted to the plaintiff in any amount whatever “and that the premiums which make up the statement of claim were never received by him.” Nothing further was done of record by either party until about ten years and nearly eight months afterward when, on January 7, 1896, plaintiff entered a rule on defendant to plead in five days. On January 11, defendant’s counsel went to the prothonotary’s office and filed a praecipe for a non pros, under the 96th Rule of court, allowing a non pros, to be entered in any action in which no declaration or statement had been filed within two years from the first day of the term to which the action was brought, but the prothonotary refused “to enter same for reason that a statement has been entered already, to which affidavit of defense has been filed.” On the same day a rule to show cause why a non pros, should not be entered was obtained from the court. On March 28, an amended statement was presented and ordered filed, and the rule to show cause was discharged. The case then proceeded in the usual way until a trial was had when on November 26, a verdict was returned for plaintiff for the amount of its claim with interest less some small credits not necessary to mention.

The first copy of claim filed by plaintiff, to which defendant filed an affidavit of defense upon the merits, consisted of an itemized bill setting forth that defendant was indebted to plaintiff for the premiums therein set forth upon certain numbered policies of certain specified dates, to. which was appended an affidavit of the plaintiff’s secretary, saying that the account was just and true, and that the amount therein named was due and owing to the plaintiff. The amended statement of claim which plaintiff was allowed to file consisted of a statement of the contract between the parties by which defendant became the agent of the plaintiff for placing policies and collecting premiums, alleged that plaintiff, in pursuance of this contract, received from defendant reports of policies issued by defendant, charged him with the premiums upon these policies, and then attached a copy of this account for premiums which was exactly the same as the one constituting the copy of claim first filed.

The first five and the twelfth, thirteenth and seventeenth specifications of error complain of the court below because it refused to enter a non pros, and allowed the amended statement to he filed. It is very clear to us that the rule of court relied on to justify the entry of a non pros, was not intended to apply to a case with the record as it was in this case. It applies where there has been no declaration or statement filed. A defendant who had already filed an affidavit of defense to a statement, even though it may be a defective statement, was hardly in a position to allege that no declaration or statement had been filed. If he had wished to raise the question as to the sufficiency of the statement he could have easily done so either by his affidavit of defense or by a demurrer. Such a question is not raised by a motion for a non pros, upon the ground that no statement at all had been filed. Clearly the court was right in refusing to enter the non pros. Nor can there be any valid objection because the court allowed the amended statement to be filed. The act of March 21, 1806, allows amendments to be made at any time before trial. Of course an amendment that introduces a new cause of action cannot be allowed. We do not think the amended statement in this case violated this rule. The cause of action in this case was the failure of the defendant to comply with an express or implied promise to pay over these premiums. In each statement filed the same premiums were demanded. Whilst a declaration upon one bond or note cannot be amended by adding a count upon another, a count upon the original consideration of a contract may be amended by adding a count upon any note or bond given for it. Until recently it was quite common to include in one declaration a count for goods sold and delivered and a count upon a promissory note given for the same goods, and it was never successfully contended that such a declaration contained different causes of action. So long as the breach of the same contract is alleged it is the same cause of action even though in one instance it may be alleged to be a written contract, and in another an oral contract. So long as the plaintiff in this case sued to recover the same premiums in each of his statements so long was he suing for the same cause of action. Much of the confusion that has resulted in considering this question as to whether a proposed amendment introduces a new cause of action is due to the fact that the difference between the contract and the evidence of it has not always been kept in mind. A contract may be in writing or by parol, and yet it cannot accurately be said that either the writing or the words of mouth are the contract. They are only the evidence of it. Therefore, we have not proved that a proposed amendment introduces a new cause of action when we show that it alleges a contract in writing whilst the original statement filed alleged a parol contract. The test is, is the contract, for breach of which suit is brought, the same, not, is the evidence of the contract the same: Cunningham v. Day, 2 S. & R. 1; Coxe v. Tilghman, 1 Wh. 282; McAdam v. Orr, 4 W. &. S. 550; Wilhelm’s Appeal, 79 Pa. 120.

It is to be observed, furthermore, that plaintiff was lulled to sleep as to the sufficiency of its statement by the fact that defendant, with counsel of record, had filed an affidavit of defense in which no intimation whatever is found as to the insufficiency of the claim in form. It was not until more than ten years afterwards, and then only when ruled to plead that defendant discovered that the statement of claim was insufficient. Within a reasonable time after defendant’s first objection as to the form of the statement he was furnished with a new one. The fact that the case was not proceeded with during that ten years, so far as we can discover, was no more the fault of the plaintiff than of the defendant. Each had it in his power to speed the action at any time. There is no fixed rule as to the length of delay that will prevent plaintiffs proceeding. It is a question of discretion controlled by the facts of the particular case, and the decision of the court below will not be reversed unless there is a manifest abuse of discretion. If we are compelled to say anything on this subject, we would say that from an examination of the evidence and from the verdict of the jury, we would consider it a grave injustice to the plaintiff had it not been permitted to submit its evidence to a jury.

The sixth specification of error complains because the learned judge erred in telling the jury that it was admitted that the policies were placed by the defendant. Taking this language complained of in connection with the other part of the charge where it was explained to the jury that defendant’s contention was that these policies were placed and premiums collected by the Union Insuring Company, Limited, we do not think any harm was done to the defendant. The jury could not have understood the court to say that defendant admitted his liability. The evidence conclusively shows that there was no question as to the policies having been issued and premiums collected, and the charge of the court, taken as a whole, could not possibly be understood as meaning to instruct the juiy that defendant had admitted any personal liability. There is no merit in this specification.

The remaining specifications of error in substance complain of the court’s instructions upon the question of the liability of the defendant or of the Union Insuring Company, Limited. The defendant’s contention was that he was not personally liable because these premiums were collected by the Union Insuring Company, Limited, that the contract was between the plaintiff and this company, and that if any one was liable it was this company. To meet this contention of the defendant the court clearly pointed out to the jury what was the evidence on this subject. The court in substance told the jury that if the contract was between plaintiff and defendant, plaintiff could recover, but that if it was between plaintiff and this other company, then plaintiff could not recover. Whether defendant was agent or broker, or Union Insuring Company, Limited, was agent or broker, was of no importance in this issue. The question was whether defendant or some one else withheld premiums due. The jury found that defendant withheld them. It is of no importance whether he withheld them as agent, or as broker. We are of opinion that the charge of the court was a fair, adequate, and clear statement of the issues between the parties. Upon evidence satisfactory to us from a careful reading of it, and evidently satisfactory to the court below from having heard it, the jury found for plaintiff. There was no mistake in law made and therefore judgment is affirmed.