Riley v. Prudential Insurance , 12 Pa. Super. 561 ( 1900 )

Opinion by

Beaver, J.,

■ The defendant issued a policy upon the life of James Riley, in and by which it stipulated to pay “unto the executors, administrators or assigns of the person named as the insured in this policy, unless settlement shall be made under the provisions of article 2 hereinafter contained, the sum of money, as provided in the schedule herein contained within twenty-four hours after acceptance at its said office of satisfactory proof of the death of the insured during the continuance of this policy which is issued and accepted subject to the following restrictions, conditions and agreements and to the concession printed on the back hereof, which is hereby made part of this contract.” Two of the restrictions or conditions following are:

“ 9. That no suit or action at law or in equity shall be maintainable with respect to the payment of this policy, until after the filing in the principal office of the company of the above mentioned proof of death, nor unless such suit or action shall be commenced within six months next after the decease of the person insured under this policy; and it is expressly agreed that, should any such suit or action be commenced after the expiration of said six months, the lapse of time shall be deemed as conclusive evidence against the validity of such claims, any statute of limitations to the contrary notwithstanding.

“ 10. Agents are not authorized to make, alter, or discharge contracts or waive forfeitures or receive premiums on policies in arrears beyond -the time allowed by the regulations of the company, which in no case shall exceed four weeks.”

Within an hour after the death of the decedent, which occurred on December 2, 1895, his widow, Bridget Riley, delivered to one Duffy, who she alleges “ was the assistant superintendent at the time,” the premium receipt book and the policy upon which the suit is founded. She brought suit in her own name before an alderman February 8, 1890, from whose judgment in her favor an appeal was taken by the defendant to the court of common pleas. The case was called for trial January 17, 1899, more than three years after the death of the decedent. Before the jury was sworn, upon motion of the plaintiff, “The name of Bridget Riley, administratrix of James Riley, deceased, was, on motion of plaintiff, substituted for that of Bridget Riley as plaintiff.” To the action of the court in allowing this amendment the defendant excepted and assigns the amendment as error, and the several assignments which relate thereto are relied upon as the principal ground upon which a reversal is asked.

It is very clear that, under the terms of the policy, Bridget Riley, the original plaintiff, had no right to recover, and this is practically conceded by her counsel. It is alleged, however, that Bridget Riley, being the widow of the decedent, is the principal beneficiary of his estate, and that the administrator is her representative, and that the amendment is purely technical and, whether a recovery be had in the name of the widow as such, or as administrator, makes no practical difference to the plaintiff. From the standpoint of the plaintiff this may or may not be true. We have no evidence upon the subject. The condition of James Riley’s estate is not shown and whether the money, if recovered in this action, would go to creditors or parties beneficially interested as heirs does not appear and, in our view of the case, is immaterial. It is true that the1 courts are disposed to be liberal in the allowance of amendments either as to parties or pleadings, but this is never done when the opposite party is thereby deprived of any substantial right. In Furst v. Building Association, 128 Pa. 183, the present chief justice of the Supreme Court, in delivering its opinion, said: “It is necessary to say that the suit was originally brought in the name of the Mutual Saving, Loan & Building Association alone. That corporation was the holder of the mortgage against Furst & Sons. As that company, however, was in no sense a party to the contract in suit, which was made only between J. S. Furst individually and the defendant corporation, it was soon perceived there could be no recovery in an action brought in its name. This being so, the counsel for the plaintiff, on March 8, 1887, applied for an amendment by which the name of John S. Furst, for the use of the Mutual Saving, Loan & Building Association was substituted as plaintiff for the name of the association alone. This amendment vvas allowed by the court below but only after objection and exception by the defendant. It is difficult to see how this amendment could have helped the plaintiff’s case, as the statute was a complete bar at the time it was made, and it is perfectly well settled that amendments will not be allowed, when they deprive the opposite party of any rights: Kaul v. Lawrence, 73 Pa. 410; Trego v. Lewis, 58 Pa. 463; Kille v. Ege, 82 Pa. 102.” At the time of the amendment in the present case the administrator of James Riley would have had no right under the conditions of the policy relating to the time of bringing suit recited above to maintain an action against the- defendant, the time within which such an action could be brought having passed more than two years. Bridget Riley, as appears by the evidence, acquired her right to maintain the suit as administratrix on the day upon which the amendment was allowed. The amendment offered was to introduce an entirely new party as plaintiff, as much so as if letters of administration had been granted to John Doe and the offer had been to substitute him as administrator in place of Bridget Riley. The allowance of the amendment introduced as a party to the suit one who had no right to recover under the terms of the policy. Can it be contended for a moment that this amendment, under the effect given thereto in the court below, did not deprive the opposite party of his right to interpose the restriction or limitation as to the time of bringing suit mentioned in the policy ? Surely not. Whether the mere allowance of the amendment was proper or improper is not a material question. The real question is, did the amendment give the new party who was introduced upon the record the right to claim from the defendant the amount of the insurance stipulated to be paid in its policy as of the date when the suit commenced ? In view of the undoubted and uniform current of authority upon this subject, we are compelled to say no. This right could not extend in point of time beyond the date when the amendment was made. The plaintiff then had no right under the terms of the policy to recover, and the first, third and fourth assignments of error must be sustained.

This, of course, disposes of the case. It may be remarked, however, that the second assignment of error might also very properly be sustained. There was no sufficient evidence of the representative character of Duffy which should have allowed the question of his authority to waive any of the terms of the policy to be submitted to the jury. It is true that the plaintiff calls him “ assistant superintendent ” but there is no evidence beyond her mere assertion that he sustained such a relation to the company, and no evidence whatever that he had any authority to waive the requirement of the policy as to the furnishing of the proofs of loss to the principal office. It follows, from what has been said, that no recovery should have been allowed in the court below.

Judgment reversed.