
    No. 606
    ALLIANCE INSURANCE CO. v. PORRIS
    Ohio Appeals, 8th Dist., Cuyahoga County
    No. 4936.
    Decided March 10, 1024
    923. PLEADINGS — A pleading can be amended as to amount claimed, where defendant is in court and not in default of answer.
    647. INSURANCE! — No breach of warranty held in policy to exist under facts of case— Evidence sufficient to sustain proof if loss.
    Attorneys — Davis, Young & Vrooman, for Insurance Co.; Doerfler & Kornhauser, for Porris; all of Cleveland.
   SULLIVAN, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

This was an action to recover fire insurance for the loss of three automobiles, two of which were Packards and the other was a White. These machines were totally destroyed in a garage in 1921. The policies were issued in January, 1921, and the fire occurred on April 15^ 1921. An answer was filed to the petition denying the performance of the conditions named in the policy, asserting breaches of warranty by the plaintiff in respect to the model of the cars, the dates of their purchase and the purchase price thereof as well as the place where the cars were stored. The Company also asserted the absence of service of proof of loss.

A reply was filed by plaintiff setting up that the agent of the Company placed in the policy the date of purchase, the price paid and the descriptions of the mahcines without the knowledge or consent of plaintiff and specifically asserted the giving of notice. During the trial an amended petition increasing the amount sued for was filed and allowed by the court. The evidence disclosed a conflict as to the warranties in question, but it appeared in evidence that the Insurance! Company had a certain blue book in its possession bearing upon the market value of automobiles which contains the factory number, motive power, list price and date of purchase.

The evidence was also in conflict as to proof of loss, but the defendant offered in evidence the plaintiff’s signed statement which, although not sworn to, was made immediately after the fire and which the plaintiff claimed he made in one of the offices of the defendant Company. A verdict was rendered for the plaintiff, whereupon defendant prosecuted error. In sustaining the judgment of the lower court, The Court of Appeals held.

1. 11281 GC. provides that the court is not empowered to cause an amendment after service, refers to judgments by default and not to a situation where, after service and the making up of issuesj the court during trial, while both parties are in court, allows an amendment for the purpose of increasing the amount sued upon, especially where the increase is in the nature of interest.

2. There was no breach of warranty, as there was creditable evidence of sufficient probative force to sustain a verdict in behalf of plaintiff on the ground that the plaintiff was in-no manner directly or indirectly a party to the information given in the Exhibits.

3. There is creditable evidence to show that proof of loss was made out by the Insurance Company and signed by plaintiff.  