Opinion
May 3, 1935.
July 18, 1935.
Pleading — Amendment — Name of plaintiff — Striking out reference to attorney-in-fact — Surplusage — Statute of limitations.
Where an action in assumpsit was instituted in the name of a party as attorney-in-fact for an insurance company, to recover, as averred in the statement of claim, money due by the defendant to the insurance company, as premiums on a policy issued by the latter, an amendment striking out reference in the pleadings to the attorney-in-fact was properly allowed after the period of the statute of limitations, since such reference was mere surplusage mistakenly included.
Appeal, No. 202, April T., 1935, by plaintiff, from order of County Court, Allegheny Co., 1929, No. 1442, in case of Appleton Cox, Inc., attorney-in-fact for Agricultural Insurance Company v. Pittsburgh Refrigeration Corp., otherwise known as Pittsburgh Refrigerator Company.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, JAMES and RHODES, JJ. Reversed
Motion and rule to show cause why amendment should not be allowed.
Rule discharged, SOFFEL, PIEKARSKI and McBRIDE, JJ., in opinion by PIEKARSKI, J. Plaintiff appealed.
Error assigned was order discharging rule.
H.R. Levy, of Kaufman Levy, for appellant.
Frank S. Delp, for appellee.
Argued May 3, 1935.
An action of assumpsit was brought, on July 18, 1929, in the County Court of Allegheny County in the name of Appleton Cox, Inc., attorney-in-fact for Agricultural Insurance Company of Watertown, New York, against Pittsburgh Refrigeration Corporation, otherwise known as Pittsburgh Refrigerator Company, to recover the premiums due on a policy of insurance, (transportation policy), issued, on March 28, 1927, by said insurance company to said defendant. The plaintiff's statement of claim, by its averments, showed that the action was brought to recover money due the said insurance company by the said defendant as premiums on said policy. It was clear that the action was brought on behalf of the insurance company as named principal.
On August 28, 1934, the plaintiff moved to amend the caption of said action and the statement of claim filed therein, by striking out the words, "Appleton Cox, Inc., attorney in fact for" and leaving as the plaintiff in said action and statement, "Agricultural Insurance Company of Watertown, New York." The court refused the amendment on the ground that it substituted a new plaintiff, more than six years after the cause of action accrued. Plaintiff appealed.
The trouble with the court's action is that it was based on a wrong premise. No new plaintiff was, in reality, substituted. The defendant had notice, right from the start of the litigation, that the action was to recover money alleged to be due by defendant to Agricultural Insurance Company. The suit in the name of Appleton Cox, Inc., attorney-in-fact for the named principal, was a mistake, but it was amendable at any time, (Adams v. Edwards, 115 Pa. 211, 8 A. 425), for the inclusion of the name of the attorney-in-fact should be regarded as mere surplusage.
The cases relied on by the court below and the appellee are all easily distinguishable. In all of them a real change of the party plaintiff, or of the capacity in which he brought suit, was attempted to be made after the statute of limitations had run. Here, all that was asked was to omit the name of the attorney-in-fact for the real named plaintiff, whose rights were sought to be enforced — a matter of surplusage, mistakenly included in bringing the action, the elimination of which affected nobody's rights.
The order is reversed and the amendment allowed, with a procedendo.