Opinion
No. 5370.
Argued December 7, 1965.
Decided January 31, 1966.
1. In actions on fire insurance policies for losses alleged to have resulted from windstorm damage, the granting of a motion to amend the writs by adding a count in assumpsit alleging defendant's wrongful cancellation of the policies resulting in damage by reason of the burning of the premises before new coverage could be procured and another count in case alleging wrongful cancellation which prevented the plaintiff from obtaining full coverage before loss by fire was within the discretion of the Trial Court (RSA 514:9) where both counts presented by amendment related to the contracts giving rise to the original actions.
Assumpsit against eight insurance companies to recover under contracts of insurance for terms of one year beginning June 3, 1959, for losses alleged to have been suffered by the plaintiffs when their hotel at Rye was damaged by windstorm on December 27, 1959. The actions were commenced by writs returnable in May 1963. On April 6, 1964 the plaintiffs moved to amend their writs by adding counts in assumpsit and case, the former alleging wrongful cancellation of the insurance policies on or about June 3, 1959 with resulting damage by reason of the burning of the insured premises before new coverage could be procured, and the latter alleging wrongful cancellation which prevented the plaintiffs from obtaining full coverage before loss by fire.
After hearing, the Court (Leahy, C. J.) on March 3, 1965 granted the motions to amend, subject to the defendants' exceptions. All questions of law raised by the exceptions were reserved and transferred by the Presiding Justice.
Flynn, Powell McGuirk and Raymond P. Blanchard (Mr. Blanchard orally), for the plaintiffs.
Sheehan, Phinney, Bass, Green Bergevin and Robert E. Dastin (Mr. Dastin orally), for the defendants.
RSA 514:9 provides in part that amendments "in matters of substance may be permitted in any action . . . when it shall appear to the court that it is necessary for the prevention of injustice. . . ." The defendants in support of their exceptions argue that while our system of pleading and practice is regarded as "liberal" and free from technical rules, "we have not advanced to the stage where liberality dictates that a party must defend in one action, two separate and distinct controversies not arising out of the same transaction." They recognize the plaintiffs' right "to bring the actions that they have against the defendant . . . companies." No claim is made that the actions may not be rightly understood. Cf. Porter v. Dziura, 104 N.H. 89. They urge however that the Trial Court erred because the causes alleged do not meet the standard for the consolidation of actions laid down by Tinkham v. Railroad, 77 N.H. 111 as to "what on the whole justice requires," and because the distinct issues presented by the new counts would unduly complicate the issues and confuse a jury, to the prejudice of the defendants.
The record indicates that the counts presented by amendment relate to the same contracts which give rise to the original actions. The record permits no determination of the extent to which evidence with respect to the alleged windstorm loss would be material upon trial of the counts alleging wrongful cancellation of the policies, the terms of which are not before us. The order of the Court to which exception was taken did not purport to determine the extent to which the issues between the parties should be decided in a single trial. So far as appears, it merely determined that justice does not require that the plaintiffs be required to bring new suits to present their additional causes of action. See Annot. 68 A.L.R. 2d 1372, 1375-1376. In this determination we see no abuse of discretion.
The defendant however regards the order granting the motion to amend as a determination that the "several actions . . . be tried together"; and in oral argument stated that this issue was argued before the Trial Court at the hearing on the motion to amend. If in fact the order on the motion was understood by the Court and the parties to require consolidation of the counts for trial, the record before us, which contains no transcript of the hearing, affords no basis for holding such an order erroneous as a matter of law. Pike v. Scribner, 101 N.H. 314. See Allbee v. Elms, 93 N.H. 202, 204.
Exceptions overruled.
All concurred.