#### Ehlers, Administratrix, Respondent, vs. Gold and another, Appellants. [Two appeals.]

*January 11*

March *14, 1922.*

*Pleading: Amendment: Discretion of court.*

Where a liability insurer, joined as a defendant with an automobile driver in an action for injuries to and the subsequent death of plaintiff’s husband, defended the action, the insurer’s attorney representing both the insurer and the insured, and no concealment was practiced upon the insurer and no claim made by it that it was not liable because the injuries had been inflicted by a car substituted for that described in the policy until late in the course of the trial, the denial of an application after new trial ordered to allow an amendment to enable the insurer to plead that its1 policy did not- cover injuries inflicted by the substituted car, was within the discretion of the court.

*337Appeals from a judgment of the circuit court for Milwaukee county: John J. Gregory, Circuit Judge.

*Affirmed on both appeals.*

This was once before this court and is reported in 169 Wis. 494, 173 N. W. 325. We shall not restate the facts here, but the statement and opinion will be in the nature of a supplement to the case as reported in 169 Wis. 494.

*Horace B. Walmsley*of Milwaukee, for the appellant *Gold.*

*J. Elmer Lehr*of Milwaukee, for the appellant *Automobile Liability Company.*■

*Charles T. Llickox*of Milwaukee, for the respondent.

The following opinion was filed February 7, 1922:

Rosenberry, J.

On behalf of the appellant *Gold*it is contended that, it appearing that there was in the rear of *Gold’s*car another car following upon which there were lighted larhps which sufficiently lighted the street, the finding of the jury that *Gold*was not in the exercise of ordinary care in the control and management of his car should be set aside. We shall not take up the evidence in detail, but a careful examination convinces us that there was ample evidence to sustain the verdict of the jury and that the trial court correctly denied the motions made by the defendant *Gold*to change the answers to the special verdict. Upon this trial the jury found that the collision occurred after 5:45 p. m. on October 12, 1916, and upon the car of the defendant *Gold*there were not displayed lamps giving a reasonably bright light in the direction in which the automobile was going; that the failure to display such lights was the proximate cause of the injuries to the deceased, Ehlers; that the defendant *Gold*failed to exercise ordinary care in the operation and management of his automobile at and immediately prior to the time that John Ehlers was injured; that the failure of the defendant *Gold*to exercise ordinary care in the operation and management of his auto*338mobile was the proximate cause of the injuries to John Ehlers; that John Ehlers was not guilty of contributory negligence; and assessed the damages to the estate of John Ehlers, exclusive of pain and suffering, at- $779, pain and suffering $1,000, pecuniary injury sustained by the widow as the result of the death of John Ehlers $7,000. Upon motion for a new trial the amount assessed for the widow’s pecuniary loss was reduced by the court to- $5,000, and judgment entered accordingly. It is contended that the damages are still too large. The verdict having been approved by the trial court, it is considered that it should not be disturbed in this case.

The *Automobile Liability Company*was made a defendant, and, as appears in the report of the case in 169 Wis. 494, 173 N. W. 325, upon the first trial the *Liability Company*moved to amend its answer for the reasons there set out. The trial court denied the motion on the ground that the application for the amendment was not timely, and this disposition of the matter by the trial court was approved by this court. Prior to the commencement of the second trial the *Liability Company*again moved the court for leave to amend its answer and the motion was again denied' and judgment was rendered against the *Liability Company,*from which it appeals.

It appears that the car which *Gold*was driving at the time of the accident was a new car of the same make, type, and description as that upon which the policy of insurance was issued, and differed from it in no respect with the exception of the factory number. It appears that the means of knowledge of the substitution of the new car for the one described in the policy was accessible to the *Liability Company*at all times. It had issued another policy of insurance upon the car described in the policy, which had been transferred by *Gold*to his brother. This occurred on August 9, 1916. On August' 14, 1916, *Gold*reported the accident upon the blank furnished by the company, but failed to give *339the factory number of the car as required. On November 25th a coroner’s inquest was held, upon which the defendant *Gold*gave testimony showing the substitution of the new car and its factory number and the removal of the license obtained from the old car to the new car without notifying the authorities. It appears that a transcript of this testimony was in use upon the first trial. The *Liability Company*first demurred to the complaint for insufficiency on the ground that its policy contract covered only injuries to passengers and not to pedestrians, and upon the further ground that the *Liability Company*could not be jóined as a party defendant with the insured. At the same time counsel for the company appeared on behalf of the defendant *Gold*and moved the court to strike out those portions of the complaint alleging a cause of action against the *Liability Company.*On June 30, 1917, the order was sustained. The plaintiff appealed to this court, where the order sustaining the demurrer was reversed. The cause being remitted, the *Liability Company*served a verified answer admitting that *Gold*at the time of the accident carried the policy contract of insurance alleged in the complaint and that he held his certificate from the railroad commission permitting him to operate as a bonded carrier and that his state license, motor vehicle factory number, and serial number are as set up in the complaint, and set up the defense that he was not then operating under the policy contract but was in pursuit of his private business. The first trial of the action was begun May 24, 1918, and upon that trial the application for leave to amend the complaint, passed upon in 169 Wis. 494, 173 N. W. 325, was made. Before the second trial and on January 12, 1920, the application was renewed. No concealment was practiced upon the defendant *Liability Company*either by the plaintiff or b}'- *Gold. Gold*apparently was of the opinion that his insurance policy covered his liability, for the reason that he promptly reported the happening of the accident to the *340
      *Liability Company.*If, as now claimed by the *Liability Company,*its policy was not applicable, it should have seasonably asserted its freedom from liability upon that ground. It chose, however, to litigate first the question of whether or not it could properly be joined, which could only be done by an admission that its policy of insurance was applicable. It then litigated the question of whether or not *Gold*was in the course of his business as a bonded carrier, and it was not until late in the course of the first trial that any attempt was made to assert no- liability on the ground that the policy did not cover injuries .inflicted by the substituted car. . There having been no concealment, the means of knowledge having been open to the defendant, the same attorney representing both *Gold*and the *Liability Company*upon the first trial down to the time that the amendment was sought, it is considered that the trial court was within the exercise of sound judicial discretion in denying the application for leave to amend.

*By the Court.*— The judgment appealed from is affirmed upon both appeals.

A motion for a rehearing was denied, with $25 costs, on March 14, 1922.