Delaware Insurance v. Pennsylvania Fire Insurance

Atkinson, J. 1. One of the questions presented in the bill of exceptions and discussed in the brief of counsel for the plaintiff in error is whether the court committed error in allowing an amendment to the original petition, over the objection that it added a new and distinct cause of action. The allegations of the original petition as amended, before the amendment now under consideration ivas offered, are substantially set forth in the report of the case when it was before this court on a former occasion. 126 Ga. 381 (55 S. E. 330). On the subsequent trial in the court below, over objection of the defendant as already stated, the plaintiff was allowed to amend by alleging, in substance, that in 1895 the defendant issued to the plaintiff a policy of insurance (the contents of which were fully set forth), providing for reinsurance of risks held by the plaintiff upon the property of others, the reinsurance to be accomplished by entering upon the register of the defendant a memorandum of the risks, whereupon the memorandum and en-' try should become a part of the original contract of insurance as entered into in 1895, and the risks should become insured thereunder; and that the contract set forth in the original petition (and which is set forth in the statement of facts in the report of [645] tlie ease when it was here before) is the memorandum made upon the register of the defendant in reinsuring the Stensel risk, and is to be construed in connection with and as a part of the original contract of 1895, and operates to reinsure said Stensel risk under that contract. The point is made that the amendment, by introducing the contract of 1895, adds a new cause of action. In this yiew we can not concur. There is no effort to reform the contract of 1895. The only reformation sought is that set forth in the original petition before amendment. The relief sought in the original petition related to the Stensel risk, and the plaintiff’s claim was founded upon the reinsurance of that risk as the subject-matter of the suit. No other transaction, risk, or subject-matter is sought to be introduced by the amendment. The parties and relief sought in the original petition and in the proposed amendment are identical. There was no attempt to rely upon the contract of 1895 as a distinct cause of action, independently of the memorandum, but the effect of the amendment was to set forth the contract of reinsurance originally declared upon, more at length and more completely than it was alleged in the original petition. There was no inconsistency between the contract of 1895 and the memorandum originally declared upon. Both related to and formed parts of the transaction which constituted the basis of the action. Under these conditions the amendment was germane, and did not add a new cause of action. Eagle & Phenix Mills v. Muscogee Mfg. Co., 129 Ga. 712 (59 S. E. 804) ; City of Columbus v. Anglin, 120 Ga. 785 (48 S. E. 318) ; May Mantel Co. v. BlowPipe Co., 93 Ga. 778 (21 S. E. 142) ; Tumlin v. Bass Furnace Co., 93 Ga. 594 (20 S. E. 44) ; Fla. Midland R. Co. v. Varnedoe, 81 Ga. 175 (7 S. E. 129) ; Verdery v. Barrett, 89 Ga. 349 (15 S. E. 476) ; Marietta Paper Mfg. Co. v. Bussey, 104 Ga. 477 (31 S. E. 415) ; Armour v. Ross, 110 Ga. 403 (35 S. E. 787) ; Maxwell v. Harrison, 8 Ga. 61 (52 Am. D. 385). 2, 3. The second and third headnotes sufficiently deal with the remaining assignments of error. Judgment affirmed. All the Justices concur.