Beauchamp v. Retail Merchants Ass'n

On Rehearing.

Christianson, J.

Defendant has filed a petition for rehearing wherein it asserts: (1) That the construction placed upon the iron-safe clause is too narrow; (2) that the acts of Larkin and the offer of payment made by him did not operate as a waiver; (3) that it was incumbent upon plaintiff to raise the question of waiver by way of reply; that the question was not so raised, or at all; (4) that we overlooked certain showing made by defendant’s counsel in support of the motion to amend the answer; (5) that the evidence was insufficient to show that the plaintiff had sustained a loss, under the policies, for the amount of the verdict.

With respect to the first two propositions, it is sufficient to say that we have again considered the former opinion, and are wholly satisfied with what we there said with respect to the purpose of insurance contracts ; the construction to be placed upon forfeiture provisions in such contracts, and waiver of such provisions.

Defendant is in error when it asserts that it was incumbent upon the plaintiff to raise the question of waiver by way of reply. In this state “a plaintiff is not required to reply to new matter in an answer not constituting a counterclaim, except by order of the court; but every allegation of new matter in the answer, not constituting a counterclaim, is deemed controverted by the plaintiff as upon a direct denial or avoidance by operation of law.” Moores v. Tomlinson, 33 N. D. 638, 157 N. W. 685, Comp. Laws 1913, §§ 7467-7477 and 7452; Kingman v. Lancashire Ins. Co. 54 S. C. 599, 32 S. E. 762; Crittenden v. Springfield, F. & M. Ins. Co. 85 Iowa, 652, 39 Am. St. Rep. 321, 52 N. W. 548. See also Moody v. Amazon Ins. Co. 52 Ohio St. 12, 26 L.R.A. 313, 49 Am. St. Rep. 699, 38 N. E. 1011; 19 Cyc. 922, and authorities cited in notes 38, 39, 40, and 41.

As noncompliance with the iron-safe clause was not pleaded in the *498answer, the question of waiver was not strictly an issue in this case. But, as stated in our former opinion, appellant anticipated this question, and devoted a considerable portion of its brief to argument and citation of authorities in support of the proposition that defendant had not waived the right to avail itself of the defense of noncompliance with the iron-safe clause. Appellant raised the question of waiver, and we are wholly satisfied with what we said with respect thereto in our former opinion.

It is asserted that in our former opinion we overlooked the oral statement made by defendant’s counsel upon the hearing of the motion for leave to file an amended answer to the effect “that the answer in this case was prepared rather hurriedly, and that in preparing for trial, after talking to my client, I discovered that the answer as originally prepared did not set out all of the defenses to which the defendant was entitled and which was necessary to be pleaded as a defense so as to properly protect the rights of the defendant, and, accordingly, I prepared an amended answer.” Whatever value was to be attributed to a statement of this kind was primarily for the trial court. A party who desires to apply to a trial court for leave to amend a pleading has the burden of sustaining his application, and should show some reason justifying or requiring the court to grant the amendment. The application is addressed to the court’s discretion. The discretion should be exercised to promote the ends of justice. The presumption is that it was so exercised. On appeal it must be shown that the discretion has been abused. In this case we are agreed that an abuse of such discretion has not been shown.

It is true that appellant, in its specifications, assails the sufficiency of of the evidence as to the value of the stock of merchandise destroyed. But no further reference is made thereto, and no argument is presented in support thereof in the brief. Nor is it mentioned by appellant, as one of the issues presented for determination on this appeal. Hence under the well-settled rule that assignments not argued will be deemed abandoned, the specification of insufficiency of evidence as to the value of the stock of merchandise should be deemed abandoned. In this case, however, the point is without merit, as plaintiff’s testimony is to the effect that the stock was worth to exceed $12,000 at the time of the fire.

A rehearing is denied.