American Equity Life Ins. Co. v. Miller, 18521

• Decision Date: 15 June 1966
• Docket Number: No. 18521,18521
• Court: South Carolina Supreme Court
• Parties: AMERICAN EQUITY LIFE INSURANCE COMPANY, Respondent, v. Harold MILLER, Appellant.

Page 331

149 S.E.2d 331

248 S.C. 107

AMERICAN EQUITY LIFE INSURANCE COMPANY, Respondent, v. Harold MILLER, Appellant.

No. 18521.

Supreme Court of South Carolina.

June 15, 1966.

Townsend & Townsend, Columbia, for appellant.

Thomas E. McCutchen, D. Reese Williams, III, Columbia, for respondent.

PER CURIAM.

This is an appeal from an order of the circuit court, which will be reported, overruling a demurrer to plaintiff's complaint. The complaint alleges separately two causes of action arising out of a single transaction wherein the defendant deposited the sum of $100,000 in an account to plaintiff's credit, contemporaneously taking an irrevocable assignment of the account as security, and receiving from the plaintiff within sixty days thereafter an additional sum of $6,242.

In brief summary, the two causes of action are as follows. In the first, it is alleged that the said deposit was a loan, and that the additional sum received by the defendant was usurious interest thereon, to the damage of the plaintiff in the amount of.$12,484, the statutory penalty for usury. The second alleges that an officer of the plaintiff corporation and the defendant entered into a conspiracy to defraud the plaintiff; that the purpose of the deposit was to enable said officer to make a false financial statement which was prepared by the said officer; guilty knowledge on the part of the defendant of the improper nature of the transaction and that the sum of $6,242 was fraudulently extracted by the defendant from the plaintiff, to plaintiff's damage actual and punitive in the sum of $20,000.

The prayer of the complaint is in the alternative, dependent upon the proof, for either.$12,484, or for $20,000 actual and punitive damages. The demurrer was on the ground that two causes of action were improperly united, in that the first cause of action is stated in affirmance of a valid contract between the parties, whereas the second cause of action is in disaffirmance of such contract.

In our view, it is unnecessary for us to even consider whether the second cause of action disaffirms the contract which is the basis of the first cause of action, because, even if it be conceded that the two causes of action are inconsistent in that respect, we then have a clear case for the proper application of the rule that a plaintiff may set up entirely inconsistent causes of action when the pleader is uncertain as to what the evidence may disclose and when only one recovery is sought. In view of the serious charges contained in the complaint against the corporate officer involved in the transaction, it is certainly clearly inferable, if not perfectly obvious, that such officer is not available as a co-operative witness and that consequently, there is grave doubt on the part of the plaintiff as to what the evidence may disclose. As between the parties to this action, the precise facts of the transaction between the defendant and such corporate officer would appear to be peculiarly within the knowledge of the defendant. The rule allowing the joinder of entirely inconsistent causes of action, under the circumstances abovementioned, is particularly applicable, where the matters, as to which plaintiff is uncertain, are peculiarly within the knowledge of the defendant. 1 C.J.S. Actions § 79, p. 1235.

We conclude that the demurrer was properly overruled and that appellant's exceptions are without merit.

Affirmed.

The order of Judge GRIFFITH requested to be reported follows:

This matter comes before me...