Kelly v. Continental Casualty Co. , 87 Miss. 438 ( 1905 )

Truly, J.,

delivered the opinion of the court.

The transfer which it is alleged operated as an assignment of the claim forming the subject-matter of this suit is not set out in the record, and there is confusion as to its exact recital and some doubt as to the real intention of the parties in executing the same. Granting the correctness of the legal proposition contended for by appellee — that the assignment had the effect of making the assignee the real owner of the chose in action and the proper party to prosecute the suit — still, when .he offered to renounce all interest in the claim, and a request was made for leave to change the proceedings so as to make them conform to the opinion of the trial court, permission should have been granted, the amendment made, and the cause proceeded with to final judgment.

Code 1892, § 717; expressly grants the court full power to permit amendments to be made in pleading or proceeding, at any time before verdict, so as to bring the merits of the controversy between the parties fairly to trial. The court should have followed the course indicated by that section. The controversy between the parties — the real question at issue — was the liability of the Continental Casualty Company for injuries alleged to have been suffered by Kelly. The question of who was the right party to receive the money, in the event the appellee should be liable, was, so far as the merits of the controversy were concerned, of no importance. Certainly if the appellee, by its policy of insurance, is liable for injuries alleged to have been suffered by Kelly, it is not vital to its defense whether the money which it justly owes is to be paid to the assured or to his assignee. Even if the assignment was absolute, the court should have permitted the change in the name of party and submitted the real question at issue to the decision of the jury.

Reversed and remanded.