Heller v. Royal Ins. Co.

Opinion by Mb. Justice Stebbett, The subject of complaint in the first and fourth specifications is the discharge of plaintiff’s rule to show cause why she should not have leave to amend the record by withdrawing her statement of claim filed May 9, 1889, and substituting in lieu thereof, the statement annexed to the rule and fully recited in the fourth specification. We are not convinced that, in the circumstances, there was any error in discharging the rule. It is not even alleged that any of the averments contained íd the original statement, and omitted from the proposed amendment, were inserted by mistake, or that they are incorrect, or wholly irrelevant to the cause. It is merely claimed by the plaintiff that they are immaterial and unnecessary to a complete ex parte statement of her claim. A comparison of the two statements shows, among other things, that the original contains averments relating to [104] an agreement between plaintiff and her landlord for rebuilding the leased premises which were destroyed by fire, etc. Also, an admission that defendant company paid, on account of plaintiff’s claim for loss by fire, $8,096.50, the receipt for which is indorsed on her policy of insurance, a copy of which, exhibiting said receipt, is attached to and forms part of said original statement of claim. It also appears that the amount plaintiff claims to recover is $3,000 with interest. The statement which plaintiff proposes to substitute, in lieu of the original, contains none of the foregoing averments. The copy of insurance policy, referred to and made part of the statement, omits the indorsed receipt for the $3,096.50 paid by the defendant company on account of plaintiff’s claim. The proposed substitute also avers that plaintiff claims to recover from defendant $6000, the full amount of insurance, with interest, etc. It may be that these omitted averments, etc., are not necessary to the plaintiff’s case. On the contrary, they may be, and perhaps are wholly unnecessary thereto; but if, in point of fact, they are true, and not wholly irrelevant to the cause, they may, as admissions of record, be advantageous to the defendant. It does not follow that because they are unnecessary to the plaintiff she has a right to withdraw them from the record. The poliejr of insurance, used for the purpose of charging defendant on its contract of indemnity, should correctly exhibit a copy of the indorsed receipt as a pro tanto discharge. Under our statute, amendments are not always a matter of right. They are largely in the discretion of the trial judge. In this case no good reason appears to have been shown in support of the rule, and hence there was no error in discharging it. The first and fourth specifications are not sustained. The second and third specifications complain of the judgment for defendant on the demurrer to plaintiff’s statement of claim. When this cause was here before on defendant’s appeal from the judgment of the common pleas for want of a sufficient affidavit, the sole question was, whether, assuming the allegations of fact, contained in defendant’s affidavit in reply to the plaintiff’s demand, to be true, the latter was entitled to judgment. It was held that she was not, and accordingly the judgment [105] was reversed and a procedendo awarded: 133 Pa. 152. Then, instead of relying on the allegations contained in its said reply to plaintiff’s statement of claim, and proceeding to trial on the issue of fact thus presented, the defendant demurred to said statement. This, we think, was a step in the wrong direction. The third section of our procedure act of 1887 declares that in “the action of assumpsit and the action of trespass” the declaration “ shall consist of a concise statement of the plaintiff’s demand,” etc. It further declares: “ The statement shall be signed by the plaintiff or his attorney, and, in the action of assumpsit, shall be .replied to by affidavit.” When defendant company was required to make its reply to plaintiff’s statement, the first thing to be considered was the sufficiency of the statement. If deemed insufficient to maintain the suit, that ground of defence, at least, in the nature of a demurrer, should have been clearly disclosed in the reply, so that it might have been disposed of in limine. If well taken, it would have ended the case. Instead of that a general defence on the supposed merits of the case was interposed and we were called upon to say whether, assuming all the allegations of fact contained in the affidavit to be true, they constituted a good defence. Holding that they did, we reversed the judgment of the court below and returned the record with a procedendo. In effect, for the time being at least, the defendant then abandoned the defence set up in its affidavit, and upon which it had asked us to pass, and demurred to plaintiff’s statement of claim, and now we are passing on the sufficiency of that. We are unwilling to recognize this as proper practice. In Barr v. McGary, 131 Pa. 406, our Brother Williams, after referring to the kind of statement required by the act, says : “ The defence must then be stated and verified by the oath of the defendant. This makes up the issue on which the case is to go to trial, and if the defence set out is insufficient to prevent a recovery, the plaintiff may ask judgment for want of a sufficient affidavit of defence,” etc. But, aside from the error in practice above referred to, we think the defendant was not entitled to judgment on the demurrer. The case now presented by it is materially different from that before us on the former appeal. In the latter the allegations of fact contained in the defendant’s affidavit were [106] controlling factors. Chief among them was the alleged combination between plaintiff’s landlord and his insurers and the plaintiff herself, for the purpose of shifting a burden which justly belonged to said insurers, from themselves to the defendant. Assuming these allegations to be true, as we were bound to do in passing upon the sufficiency of the affidavit of defence, the combination of the three parties for the purpose stated was a fraud upon defendant and necessarily had a controlling effect in shaping our judgment in that case. In the present case the allegations of fraud, etc., contained in the affidavit of defence, go for naught; they are wholly out of the case. Nothing can be considered except what is already contained in the plaintiff’s statement of claim. The demurrer is to that and nothing else; and, for aught that therein appears, the transaction between the plaintiff and her landlord was perfectly proper and honest. It neither constituted an eviction by the landlord nor a rescission of the lease under which plaintiff was liable for the" rent as to which she was insured by defendant company. The cases cited in support of the proposition that the entry of the landlord into demised premises for the purpose of rebuilding operates as an eviction of his tenant, etc., are not in point. In those cases the entry was not only without the tenant’s request or assent, but to their entire exclusion from the premises. In Hoeveler v. Fleming, 91 Pa. 322, this court said: “ There is no evidence that the defendant assented to the occupation of the premises for the purpose of rebuilding. It is clear that by the terms of this lease the defendants were not bound to rebuild. . . . And I have as little doubt they would have been responsible for the rent during the term if the landlord had been content to let the building stand roofless and scarred by fire during that period. The lease contained no exoneration from rent in case of fire. Having proceeded to rebuild for her own interests, quite as much as for the convenience of the tenants, and having thereby taken possession of the demised premises, to their entire exclusion, without request or even assent on their part, can she hold them for rent ? ” It was held that she could not: Magaw v. Lambert, 3 Pa. 444, is substantially to the same effect. If the defendant company had gone to trial, as we supposed it would, on the questions of fact suggested in its reply to plaintiff’s statement, [107] it would have had an opportunity of establishing its allegations of fraud, etc., or of failing in the attempt. The second and third specifications are sustained. Judgment reversed, and an alias procedendo awarded.