North British And Mercantile Insurance Company v. Rudy

• Decision Date: 02 April 1901
• Docket Number: 3,438
• Citation: 60 N.E. 9,26 Ind.App. 472
• Parties: NORTH BRITISH AND MERCANTILE INSURANCE COMPANY v. RUDY
• Court: Indiana Appellate Court

60 N.E. 9

26 Ind.App. 472

NORTH BRITISH AND MERCANTILE INSURANCE COMPANY v. RUDY

No. 3,438

Court of Appeals of Indiana

April 2, 1901

From the Rush Circuit Court.

Affirmed.

S. N Chambers, S. O. Pickens and C. W. Moores, for appellant.

B. L Smith, Claude Cambern and D. L. Smith, for appellee.

OPINION

WILEY J.

Suit by appellee against appellant on an insurance policy to recover for a loss sustained by fire; trial by jury; verdict and judgment for appellee.

In their argument counsel for appellant have discussed but three questions: (1) The action of the court in allowing appellee to amend his complaint during the pendency of the trial; (2) the overruling of its motion for a continuance upon the filing of the amended complaint, and (3) the overruling of its motion for a new trial.

The record shows that the jury had been impaneled and the trial commenced. Appellee was the first witness called in his own behalf, and, after some few questions had been asked and answered by him, his counsel moved the court for permission to file an amended complaint. This motion was supported by affidavit under a rule of the trial court, and, over appellant's objections, the court sustained the motion, and an amended complaint was filed. In the original complaint there was an averment that appellee had performed all the conditions of the contract of insurance on his part. The original complaint was amended by adding to it certain averments in relation to the notice given by appellee to appellant as to the loss, and the sending by appellant of its agent and adjuster, in pursuance to said notice, to investigate the loss, and its refusal to pay the same. The amendment shows that the notice was given to appellant's local agent; that it was forthwith communicated to its general agent in writing. The facts averred in the amendment were peculiarly within the knowledge of such agents, and the record shows they were both present at the trial and testified as witnesses. The right to amend pleadings is conferred by statute (§ 399 Burns 1894), and such statutory provision has been liberally construed. By the amendment in this case, the cause of action was not changed, and in such case it is not error to permit such amendment. Jenne v. Burt, 121 Ind. 275, 22 N.E. 256; Meyer v. State, ex rel., 125 Ind. 335, 25 N.E. 351; Wabash, etc., R. Co. v. Morgan, 132 Ind. 430, 437, 31 N.E. 661; Raymond v. Wathen, 142 Ind. 367, 41 N.E. 815; Chicago, etc., R. Co. v. Jones, 103 Ind. 386, 6 N.E. 8.

The rule prevails in this State that granting leave to file amendments to pleadings after the issues are closed, and pending the trial, is a matter resting largely in the discretion of the trial court. It is only in cases where there seems to have been an abuse of that discretion, apparently resulting in injustice, that the appellate tribunal will interfere. Chicago, etc., R. Co. v. Hunter, 128 Ind. 213, 27 N.E. 477; Smith v. Byers, 20 Ind.App. 51, 49 N.E. 177; Brandt v. State, ex rel., 17 Ind.App. 311, 46 N.E. 682; Diltz v. Spahr, 16 Ind.App. 591, 45 N.E. 1066.

The record fails to show that the trial court abused its discretion. After the amended complaint had been filed and issues joined thereon by answer and reply, the jury was re-sworn and the trial proceeded to final judgment.

Appellant's fourth paragraph of answer, to which a demurrer was sustained, sets out certain stipulations of the policy sued on, which required appellee to take an inventory of stock once a year, keep books of account, detailing purchases and sales, and keep same locked in an iron safe. The policy was made a part of the complaint by exhibit, and the complaint averred that appellee had duly performed all of its conditions on his part. To this amended complaint a general denial was filed. Upon this issue, appellee had the burden and he was bound to prove all material averments of his complaint. Also, under such issue, appellant could prove any material facts which tended to show that appellee cad failed to perform any of the conditions imposed upon him by the terms of the policy. Thus it could have shown, under the general denial, every material averment of its fourth paragraph of answer. It will be observed that by the terms of the policy appellee was required to take an inventory of his stock once a year (the policy covering a general stock of merchandise in bulk). the policy was issued January 11, 1899, and the fire occurred June 11, 1899. The appellee had the entire year of the life of the policy in which to make an inventory, and was only required to keep books of sales and purchases from one inventory until a succeeding one was made. When the fire occurred, appellee had seven months in which to make an inventory. Citizens' Ins. Co. v. Sprague, 8 Ind.App. 275, 35 N.E. 720. If for no other reason, it was not error to sustain the demurrer to the fourth paragraph of answer, because the facts averred therein were provable under the general denial. Jeffersonville, etc., Co. v. Riter, 146 Ind. 521, 45 N.E. 697; Pullman, etc., Co. v. Marsh, 24 Ind.App. 129, 53 N.E. 782.

One reason assigned for a new trial was the overruling of appellant's motion for a continuance, upon the filing of the amended complaint. This motion was supported by the affidavit of one of appellant's counsel. As we have seen no new cause of action was stated in the amendment to the complaint. There is no statement in the affidavit in support of the motion for continuance showing in what respect appellant was prejudiced in being forced to trial. This was necessary. Brandt v. State, ex rel., 17 Ind.App. 311, 46 N.E. 682. An application for continuance is addressed to the sound discretion of the trial court, and where there has been no abuse of such discretion, the Appellate Court...