Leland v. Firemen's Ins. Co. of Newark

• Decision Date: 15 July 1937
• Docket Number: 141-1937
• Citation: 127 Pa.Super. 533,193 A. 475
• Parties: Leland et al., Appellants, v. Firemen's Insurance Company of Newark
• Court: Pennsylvania Superior Court

193 A. 475

127 Pa.Super. 533

Leland et al., Appellants, v. Firemen's Insurance Company of Newark

No. 141-1937

Superior Court of Pennsylvania

July 15, 1937

Argued April 14, 1937

Appeal from order of C. P. Erie Co., May T., 1934, No. 183, in case of F. C. Leland et al. v. Firemen's Insurance Company of Newark, New Jersey.

Assumpsit on policy of fire insurance. Rule for allowance of an amendment joining additional parties plaintiff made absolute. Trial before Kitts, J.

The facts are stated in the opinion of the Superior Court.

Compulsory non-suit entered. Motion to take it off discharged. Plaintiffs appealed.

Error assigned, among others, was refusal of motion to take off non-suit.

Order reversed; judgment of non-suit stricken off and new trial awarded.

Henry A. MacDonald, with him Walter H. Scott and Gunnison, Fish Gifford & Chapin, for appellants.

John B Brooks, with him Alban W. Curtze and I. J. Silin, of Brooks Curtze & Silin, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Keller, P. J.

The question raised by this appeal is whether the plaintiff was entitled to amend his action against the defendant insurance company by adding as plaintiffs two additional persons jointly insured with him in the policy sued upon, after the time within which a new action could be brought on the policy. The court, at first, allowed the amendment, but on the trial ruled that it had been applied for too late. As the action would not lie in the name of the plaintiff alone, a compulsory non-suit was entered, which the court subsequently refused to take off. Plaintiff appealed. We are of opinion that the court's action in allowing the amendment was, in the circumstances here present, proper, and that the non-suit was improvidently entered and should have been taken off.

On July 21, 1930 the defendant issued its policy insuring the appellant, F. C. Leland and Jiovann (John) and Elizabeth Saraceno against loss or damage by fire to property No. 527 West Washington Street, Corry, Pennsylvania, ($ 2,000) and garage on the premises, ($ 200), for three years from that date. Below the names of the insured appeared the following: "A contract of sale has been issued from F. C. Leland to J. & E. Saraceno." Elizabeth Saraceno is John Saraceno's wife.

The contract of sale was in writing and was dated October 28, 1929. By its terms Leland agreed to sell and convey the above mentioned premises to John Saraceno and Elizabeth Saraceno for $ 1,800, payable, $ 300 on the signing of the agreement and $ 25 on the tenth day of November, 1929, and $ 25 on the tenth day of each and every month thereafter until $ 1,800 had been paid; together with interest at six per cent., payable semi-annually. Upon payment of said sum and interest, Leland was to execute and deliver a general warranty deed conveying the said premises in fee simple to the Saracenos. The agreement further provided that the Saracenos were to go into immediate possession of the property and were to pay the taxes and keep the buildings insured in the sum of $ 1,500 payable to Leland, "as his interest may appear." It further provided that in case of default of payment of any sum of principal, interest, taxes or premiums of insurance for the space of thirty days after the same became due and payable, the whole of the said principal sum should at Leland's option, become forthwith due and payable, and authorized confession of judgment for the whole principal sum and any interest remaining unpaid; or Leland was authorized at his option, to bring an action of ejectment, and authority to confess judgment in such action of ejectment was expressly given by the Saracenos. It was further agreed that in the event of any default by the purchasers, all moneys theretofore paid on the agreement, should become the absolute property of the seller.

The Saracenos entered into possession of the premises on October 28, 1929, and remained in continuous possession up until March 20, 1933, when the dwelling was partially destroyed and greatly damaged by fire.

The Saracenos had made payments called for under the agreement up to October, 1931, of $ 800, but had defaulted thereafter, and, Leland claimed, had forfeited all their rights in the property.

Notice of the fire was promptly received by the insurance company, for on March 29, 1933 it gave Leland written notice of the cancellation of the policy, with the notation, "The above notice will not affect liability, if any, for loss and damage alleged to have occurred on March 20, 1933."

The insurance company denied liability under the policy on the ground that the fire had occurred by the fraudulent act or connivance of John Saraceno, one of the assured.

Leland brought an action on the policy against the insurance company on March 1, 1934, within a year after the fire. On May 4, 1934 he filed his statement, by which he claimed to recover upon the policy the sum of $ 811, the amount of the loss or damage to the buildings caused by the fire. A copy of the policy was annexed to the statement as Exhibit A, and made a part thereof. On May 15, 1934 the defendant filed a statutory demurrer, setting up, inter alia, that "the policy attached as Exhibit A and made a part of the Statement shows the Insured to be F. C. Leland and Jiovann (John) and Elizabeth Saraceno, but the statement of claim does not show why John and Elizabeth Saraceno are not made parties plaintiff." On November 15, 1934, the plaintiff presented his petition asking that Jiovann (John) and Elizabeth Saraceno be joined as parties plaintiff in the action. A rule to show cause was granted, which on the return day, November 26, 1934, was made absolute, and on the same day an appearance was entered by an attorney for John and Elizabeth Saraceno, additional plaintiffs, and an amended statement was filed to conform to the amendment of the parties plaintiff. A rule filed on behalf of defendant, to strike off the order of November 26, 1934 permitting the joinder of the Saracenos as parties plaintiff was discharged, and leave was given to file an affidavit of defense within fifteen days. Various other motions and rules were made on behalf of defendant which it is not necessary here to refer to in detail. All of the assured having appeared as plaintiffs to the action it was of no concern to the defendant how any sum that might be recovered in the action was to be divided among them: Hill v. Cumberland Valley Mutual Protection Co., 59 Pa. 474; Insurance Co. v. Updegraff, 21 Pa. 513. It was relieved of any possibility of having to pay the insurance twice and the distribution of the sum received among those entitled to it was not its affair. Its concern was to see that it did not have to pay for an incendiary fire; or if not incendiary, that the recovery did not exceed the loss or damage sustained.

The lower court based its action in holding that the amendment, joining the Saracenos as plaintiffs, was too late -- having been made more than a year after the date of the fire, and when it was too late, under the conditions of the policy to bring a new action -- on our decision in the case of Bowers Co. v. London Assurance Corp., 90 Pa.Super. 121; but, when fully understood, there is nothing in that case to warrant the position taken by the court below. The policy in the Bowers case covered an automobile and it insured "John A. Perry & L. S. Bowers Company, as their interests may appear." The automobile insured had been 'sold' by the Bowers Company to Perry for $ 800, of which about $ 450 was secured by a bailment lease, under which Perry was to keep the car insured against damage by fire, loss, if any, payable to the lessor as its interest might appear. The automobile was destroyed by fire while in Perry's possession but before title to the car had passed to him. The insurance company claimed that the automobile had been fraudulently burned by Perry or by his direction and connivance. L. S. Bowers & Co. brought an action in its own name, without joining Perry as a plaintiff, to recover its interest in the car, and secured a verdict and judgment for $ 270.30. This court reversed, holding that the policy did not insure the interests of the assured separately, but jointly; that as the contract was joint both of the assured must be plaintiffs, and that any fraudulent act of the one which invalidated his right of recovery affected the other, whether or not it had participated in the fraud. No amendment or offer to amend was made in that case, by which Perry would be added as a party plaintiff, possibly because the Bowers Company was unwilling to make its recovery dependent on the good faith and conduct of Perry with regard to the fire. But we did say, (p. 127), "The testimony offered to show the fraudulent burning of the automobile would be admissible upon amendment of the action so as to include both of the assured as plaintiffs," which shows that we regarded it as amendable, in that respect.

We recognize fully the rule that an amendment will not be allowed after the statute of limitations has become a bar, which introduces a new and different cause of action or brings new parties into the case to the injury of the defendant, or deprives the latter of a valuable right which had become vested (Grier Bros. v. Northern Assurance Co., 183 Pa. 334, 343, 39 A. 10), but in the circumstances of this case that rule is not applicable. The action was on a fire insurance policy insuring F. C. Leland and John and Elizabeth Saraceno, with notice that their respective rights were dependent upon a written contract of sale. They were insured jointly and any act of one of them invalidating the insurance barred the right of recovery of the others. But the policy...