Dissenting Opinion by
Flood, J.:The court below held, I think correctly, that since res judicata had not been pleaded, the only matter before it was the application of the Statute of Limitations. See Lang v. Recht, 171 Pa. Superior Ct. 605, 91 A. 2d 313 (1952). Both counsel acquiesced in this and in their briefs and their oral argument addressed themselves only to the proper determination of the date from which the statute began to run.
The majority opinion has not discussed the question of the Statute of Limitations but has rested this court’s decision upon the law of the case. I respectfully dissent.
The Procedural Buies do not require the “law of the case” to be specifically pleaded. There are two reasons why this defence need not be pleaded while res judicata must be, and these are the very reasons why it is not applicable to this case.
(1) The defence of the law of the case arises always at a later stage of the case (Reamer’s Estate, 331 Pa. 117, 122, 200 A. 35 (1938)), quite frequently after the pleadings have been made up, and is based upon something decided earlier in that same case. Bes judicata, on the other hand, is a defence that exists when the suit is begun and is based upon something decided earlier in a different case. Burke v. Pittsburgh Limestone Corp., 375 Pa. 390, 100 A. 2d 595 (1953). For this reason law of the case generally cannot be pleaded. Bes judicata always can be.
(2) Whether the defence of the law of the case is a bar can be determined from the record of the case be*552fore the court as it exists when the defence is raised. There is no need to bring anything upon the record by way of pleading or proof. Res judicata, on the other hand, must be determined from the record of a different case which must be brought before the court by pleading and decided upon the basis of proof, if the first case was in a different court, or judicial notice, if in the same court. The fact that the earlier suit was in the same court here, so that judicial notice takes the place of proof, does not eliminate the necessity of a pleading.
Here we have two different cases. While the plaintiff is the same, the defendants are different, the issues are entirely different, and the causes of action are entirely different. We are at a loss to see upon what basis the two cases can be considered as one.
The defendants in the one case are the tortfeasors, while the defendants in the second are the insurer and its agent. The inflexibility with which our cases keep insured and insurer separate is one of the striking features of Pennsylvania law. Unlike some other jurisdictions, we do not permit the joinder of the insurer in a tort case as an additional defendant as liable over. Goodrich-Amram, §2252-(a)-7. The theory of our cases is that the cause of action of the defendant against the insurer is not the cause of action sued on by the plaintiff. How then can we say that we are dealing with the same case here?
Indeed, the majority does not say that we are dealing with the same case. What it does say is that the determination of the prior action established the law of this case. I respectfully submit that none of the cases cited by the majority is authority for this proposition. Four of these cases involve not a decision in an earlier case but a second appeal in the same case, on another phase of that case. Creachen v. Bromley Brothers Carpet Co., 214 Pa. 15, 63 A. 195 (1906); *553Lafferty’s Estate, 230 Pa. 496, 70 A. 711 (1911); Welker v. Hazen, 247 Pa. 122, 93 A. 173 (1915); Allen v. Pennypacker, 302 Pa. 495, 153 A. 734 (1931).
The other cases were true res judicata cases. But none of them involved the pleading question raised here. In Burke v. Pittsburgh Limestone Corp., supra, res judicata was pleaded. In two of the cases res judicata was relied upon by the plaintiff, not the defendant, and the prior decision was pleaded, in one instance in the statement of claim, and in the other, a mechanics’ lien case, in the answer to a rule to amend the sci. fa. Girard Trust Co. v. Philadelphia, 359 Pa. 319, 59 A. 2d 124 (1948); Thaler Bros. v. Greisser Construction Co., 229 Pa. 512, 79 A. 147 (1911). Finally, McMahon’s Estate, 215 Pa. 10, 64 A. 321 (1906), was an appeal from the Orphans’ Court where pleadings are relatively informal and the matter of res judicata can be relied upon without being pleaded.
It is clear then, it seems to me, that there can be no defense here based upon the law of the case. In fact, in view of the lack of identity of the parties and the subject matter, I do not believe the defence of res judicata could properly be sustained even if pleaded. But since it was not pleaded, the question is not even before us.
The court emphasizes that when the plaintiff was testifying in the tort suit as to his conversations with Bell, he did not mention the fact that Bell made the promise upon which he relies here. This may well affect the credibility of the plaintiff but it was for the jury in this case and they found in his favor.
It is to be noted that the totality of the conversations between the plaintiff and Bell, testified to in both suits, is insufficient to estop the defendants in the tort suit from raising the bar of the statute in that suit. The promise and the misrepresentation, if any, were made by the agent of the insurer, not by the agent of the de*554fendants in the tort suit, and they could not bind the latter. All that such promise or misrepresentation, made by the insurer to the plaintiff, could do is give the plaintiff a cause of action upon the promise against the promisor, the insurer. It could in no way affect the right of the tort defendants to plead the statute or any other right of the defendants in the tort suit.
Ordinarily nothing done by the insurer is binding upon the defendant until the latter ratifies it. It is not easy, ordinarily, to find an agency relationship between insured and insurer, even in efforts at adjustment or settlement. 2 Couch, Cyclopedia of Insurance Law, §458. Certainly in this case there is no evidence of such agency relationship between Bell and the tort defendants.
All that was decided in the case of Bonfitto v. Bonfitto, 10 Pa. D. & C. 2d 598, affirmed, 391 Pa. 187, 137 A. 2d 277 (1958), was that nothing said by Bell affected the right of the Bonfittos to plead the Statute of Limitations. The opinion pointed out that Bell was “doubtless without any knowledge of or authority from defendants”. Nothing in that opinion dealt with the possible liability of the insurance company to the plaintiff because of Bell’s statements.
The decision in the trespass case of Bonfitto v. Bonfitto, supra, that plaintiff’s conversation with Bell did not estop the tort defendants from pleading the statute, cannot, on the theory of res judicata, preclude the plaintiff from recovering on the promise on the basis of his conversations with Bell in the. ease of Bonfitto v. Nationwide Insurance Co. Much less is it the “law of the ease” in the latter suit.
The majority deplores what it regards as an obvious inconsistency between the two results. But inconsistency is an every day incident of our legal system where juries find different and inconsistent verdicts with respect to the same facts where different parties are suing *555with reference to the same acts of negligence, the same documents or the same oral agreements in different courts, or even in different suits in the same court.
The integrity of our fact-finding system, including our jury system, requires us to put up with occasional inconsistency, much as we deplore it. The real question with which justice should be concerned in such situations is which of the inconsistent results is correct. This cannot be infallibly determined by any rule of thumb like the “law of the case”, always favoring the earlier decision over the later one, or the decision of a judge over the verdict of a jury. It is perhaps for this reason that our Supreme Court has said, with regard to this doctrine, in Reamer’s Estate, supra, at p. 122, and repeated in Burke v. Pittsburgh Limestone Corp., supra, at p. 394: “The doctrine of ‘the law of the case’ is that, when an appellate court has considered and decided a question submitted to it upon appeal, it will not, upon a subsequent appeal on another phase of the same case, reverse its previous ruling even though convinced that it was erroneous. This rule has been adopted and frequently applied in our own State. It is not, however, inflexible. It does not have the finality of the doctrine of res judicata. ‘The prior ruling may have been followed as law of the case but there is a difference between such adherence and res judicata; one directs discretion, and the other supersedes it and compels judgment. In other words, in one it is a question of power, in the other of submission’; Southern Railway Co. v. Clift, 260 U.S. 316, 319. The rule of ‘the law of the case’ is one largely of convenience and public policy, both of which are served by stability in judicial decisions, and it must be accommodated to the needs of justice by the discriminating exercise of judicial power.”
As I see it, the only question before us is the operation of the Statute of Limitations on the alleged promise which is the basis of this suit. In my opinion under the *556pleadings and the proofs, the plaintiff’s cause of action arose only upon breach of the defendant’s alleged promise. This did not happen until plaintiff’s discharge by his doctor and defendant’s refusal to honor its promise. That being so, the action was clearly brought within the statutory limit.
Since this is an assumpsit action, the six year statute applies. The promise was not breached until the insurance company, through its agent, said that it would not perform. The question raised in the lower court was whether performance was demanded within a reasonable time. Since under plaintiff’s testimony, which the jury believed, Bell said the insurance company would pay him when he was discharged by his doctor, it had no duty to perform until he was discharged. Plaintiff’s testimony, again accepted by the jury, was that he was discharged on June 3,1954. Until that date he had no right to demand performance of the promise. Since he asked for performance later on that very day, the first day when he had the right to do so, the question of reasonable time for demanding performance raises no problem. Defendant’s declaration on June 3, 1954, that it would not honor its promise, following plaintiff’s demand, matured plaintiff’s cause of action, and it is from that date that the statute runs. Bell v. Brady, 346 Pa. 666, 31 A. 2d 547 (1943); Morrison’s Adm. v. Mullin, 34 Pa. 12 (1859). Since suit was brought in May, 1959, within six years of June 3, 1954, the date when the right of action became complete, it is not barred by the Statute of Limitations. Sicola v. First National Bank, 404 Pa. 18, 170 A. 2d 584 (1961).
My dissent runs only as to the defendant Nationwide Insurance Company. Since this is an assumpsit action, based upon the statement made by Bell as the company’s authorized agent, the company only, and not Bell, can be held liable in this action.
Ervin, J., joins in this dissent.