Delaware Ins. Co. v. Pennsylvania Fire Ins. Co.

• Decision Date: 14 May 1908
• Citation: 61 S.E. 492,130 Ga. 643
• Parties: DELAWARE INS. CO. v. PENNSYLVANIA FIRE INS. CO.
• Court: Georgia Supreme Court

61 S.E. 492

130 Ga. 643

DELAWARE INS. CO. v. PENNSYLVANIA FIRE INS. CO.

Supreme Court of Georgia

May 14, 1908

Syllabus by the Court.

Where suit was instituted by one insurance company against another insurance company to reform and enforce a contract for reinsurance, a new cause of action was not added by an amendment which set up a previous contract between the same parties binding the insurer to reinsure risks held by the insured, the reinsurance to be accomplished by the issuance of a memorandum and entry thereof upon the registry of the insurer, and which alleged that the contract originally declared upon was a memorandum issued and entered upon the registry of the insurer in compliance with the stipulations in the previous contract, so as to make its provisions applicable to the particular risk designated in the memorandum; the amendment not adding any new party or referring to any different risk or relief inconsistent with that sought in the original petition.

[Ed Note.-For cases in point, see Cent. Dig. vol. 39, Pleading §§ 686-709.]

When the present case was here on a former occasion (126 Ga. 380 55 S.E. 330), it was ruled that the petition was insufficient in certain respects; but upon a subsequent trial in the court below the objections were cured by appropriate amendment, and under the former ruling of this court the petition as now amended is not demurrable upon the ground that it fails to set forth a cause of action.

The rulings announced in the foregoing headnotes deal with all of the assignments of error which were referred to in the brief of counsel for the plaintiff in error. All others will be regarded as abandoned.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4256-4261.]

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action between the Delaware Insurance Company and the Pennsylvania Fire Insurance Company. From the judgment, the Delaware Insurance Company brings error. Affirmed.

Burton Smith, for plaintiff in error.

King, Spalding & Little, for defendant in error.

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 was 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 entry 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...