On appeal from the Supreme Court, Middlesex county.
For the appellant, John C. Stockel.
For the respondent, Paul W. Ewing (George L. Burton, of counsel).
The opinion of the court was delivered by
PERSKIE, J. The basic question requiring decision is whether, under the particular proofs in the case at bar, the trial judge erred in permitting the amendment of the ad damnum clause of each of the six counts of the complaint thus entitling plaintiff to recover installments of benefits which had accrued between the commencement of the action and the day of trial and also to recover premiums paid between the same period.
Between the years of 1922 and 1926 plaintiff purchased six policies of life insurance of defendant. Each policy contained a provision which required defendant to pay monthly disability payments therein provided in case plaintiff "* * * has become wholly disabled by bodily injuries or disease and will be continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit * * *." And by this provision defendant further agreed "to waive the payment of any premiums which may fall due on this contract during such disability * * *." The monthly disability payments were $50 each under five policies and $25 under the sixth policy.
On April 7th, 1936, plaintiff became afflicted with a heart disease. Thus, on October 16th, 1936, he filed a claim with defendant for the disability payment under his policies and for a waiver of payment of premiums thereunder. Defendant refused the claim. Whereupon plaintiff on February 17th, 1937, instituted suit against the defendant to enforce payment thereof for the period from September 7th, 1936, to February 17th, 1937. Plaintiff's complaint consists of six counts. Each policy forms the basis for one count. By the ad damnum clause in each count plaintiff claimed $500 as his damages for both his disability payments and for the premiums which he continued to make to defendant in order to keep the policies effective. Defendant defended the suit upon the ground that plaintiff was not disabled within the provision of its several policies. On the complaint as filed for plaintiff and the defense thus raised thereto, the cause came on for trial on April 20th, 1938; and it took four trial days to try it. But it was not until the second trial day and not until plaintiff had almost concluded his case, that the trial judge, over objection, permitted plaintiff to amend the ad damnum clause of each count of the complaint from $500 to $2,500 to include disability payments and return of premiums between the commencement of this action (February 17th, 1937) to the day of trial (April 25th, 1938). The grounds upon which the trial judge permitted the amendment were that it would not "change the merit of the litigation,"
that it "merely changed the quantum of damages" and that the amendment was proper "if for no other reason than to avoid a multiplicity of suits." The verdict of the jury, and the judgment based thereon in favor of plaintiff and against defendant includes the damages, $7,910.86 and costs, for the period embraced by the amendment.
Defendant in attacking the judgment under review no longer argues that the trial judge erred in refusing its motions to nonsuit and to direct a verdict in its favor; the grounds embracing these motions are, therefore, treated by us as having been abandoned. Marten v. Brown, 81 N.J.L. 599; 80 A. 476; Eggert v. Mutual Grocery Co., 111 N.J.L. 502, 503; 168 A. 312. Defendant's attack is now principally confined to the contentions that the trial judge erred in permitting the stated amendment and in the admission of expert medical testimony.
1. As to the amendment. It is, of course, well settled that in actions at law, except in cases of attachment (Devlan v. Wells, 65 N.J.L. 213; 47 A. 467), no claim maturing after suit brought can be included in the judgment. Felt v. Steigler, 69 N.J.L. 92; 54 A. 243; Titus v. Gunn, 69 N.J.L. 410; 55 A. 735; Holzapfel v. Hoboken Manufacturers Railroad Co., 92 N.J.L. 193 (at p. 195); 104 A. 209; Dolin v. Darnall, 115 N.J.L. 508 (at p. 510); 181 A. 201. And in the absence of an agreement between the parties to the contrary this rule of law is applicable even "in case of an installment contract." Holzapfel v. Hoboken Manufacturers Railroad Co., supra. Cf. 1 C.J. 1148-1150, §§ 389, 392, 393. But these principles do not answer the question here requiring decision. Was the amendment properly allowed? Conceding the broad general power of amendment under our Practice act (formerly paragraphs 23 and 24, chapter 231, Pamph. L. 1912, now R.S. 2:27-158 and 2:27-132, respectively), and rules ...