Beatty v. Lincoln Bus Co.

• Decision Date: 23 November 1933
• Citation: 169 A. 286
• Parties: BEATTY v. LINCOLN BUS CO. et al.
• Court: New Jersey Supreme Court

169 A. 286

BEATTY

v. LINCOLN BUS CO. et al.

Supreme Court of New Jersey.

Nov. 23, 1933.

Action by Lloyd G. Beatty, receiver of Jersey Mutual Casualty Insurance Company, against the Lincoln Bus Company, a corporation, and others. On motion to strike out complaint.

Motion denied.

Argued before PARKER, J., at Chambers.

Israel B. Greene, of Newark, for plaintiff.

William Newman, of Irvington, for defendants.

PARKER, Justice.

The objection to the complaint is that separate causes of action are joined therein as against several defendants sued severally and not jointly; which is the fact.

Plaintiff is the receiver of a mutual insurance company of this state, and, as such receiver, claims to be entitled to collect the whole or unpaid part of a large number of assessments made by direction of the Court of Chancery against parties who had insured with the company, among whom are the three defendants. See Lincoln Bus Co. v. Jersey Mutual Casualty Insurance Co., 112 N. J. Eq. 538, 165 A. 112. The motion to strike, tantamount to a demurrer, admits for present purposes the truth of plaintiffs claim. It is plain that, except as to the amount, the claims against the three defendants are identical in character; namely, the liability to assessment pro rata to meet claims against the company. There is, therefore, a joint question of law and I think of fact also. Of course, any defendant may have a defense that is personal to himself, as, for example, infancy, or duress, or fraud in procurement, and so on. But these are defenses; the various causes of action are on the face of the complaint substantially identical as to amounts claimed.

It is conceded, and is clear, that at common law a separate action against each defendant would be necessary. The situation is analogous to that under a Lloyd's insurance policy, wherein several individual underwriters insure, each for a specified part of the risk. In such case the insured sustaining a loss would sue each of them for his individual liability based on the amount he had underwritten, 2 Chitty, Pl. 178. Even under the modern English practice this seems to be still the rule. See forms in Bullen & Leake, p. 202, etc. A recent New York case is to the same effect. Fish v. Vanderlip, 218 N. Y. 29, 112 N. E. 425, Ann. Oas. 1916E, 150.

But our Practice Act of 1912 (Comp. St. Supp. § 163—277 et seq.), though based on the late English practice ordinances, seems even more liberal than they. P. L. 1912, p. 377. The second paragraph of section 6 (Comp. St. Supp. § 163—282) provides that: "The plaintiff may join separate causes of action against several defendants if the causes of action have a common question of law or fact and arose out of the same transaction or series of transactions." Section 1 (Comp. St. Supp. § 163—277) says the act "shall be liberally construed, to the end that legal controversies may be speedily and finally determined according to the substantive rights of the parties." Paragraph (b) of rule 211 construes the word "transactions."

It has been said above that the three claims herein involved have a common question of...