Insurance Company of North America v. Cullen
| Citation | 141 S.W. 626,237 Mo. 557 |
| Parties | INSURANCE COMPANY OF NORTH AMERICA et al., Appellants, v. P. H. CULLEN et al |
| Decision Date | 29 November 1911 |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. James D. Barnett, Judge.
Affirmed.
George Robertson and Charles B. Obermeyer for appellants.
(1) The policies are interdependent; each company is interested in the fixation of the true amount of loss; each of the actions at law presents the same questions, questions of law and fact in which each and all of the parties to the petition are equally interested. If the petition is sustained, a multiplicity of suits is thereby prevented. The true amount of loss can thereby be ascertained, and the liability of each company fixed, and the loss apportioned between the several insurance companies. It therefore presents equitable issues the remedy at law is not adequate. Home insurance Co. v Clemical Co., 109 F. 681; Virginia-Carolina Chemical Co. v. Insurance Co., 113 F. 1; Insurance Co. v Schmidt, 126 F. 998; Tisdale v. Insurance Co., 84 Miss. 709; Crawford v. Railroad, 83 Miss. 708; Fuller v. Insurance Co., 36 F. 469; Garrison v. Insurance Co., 60 U.S. 19; Pennyfeather v. Baltimore, 58 F. 481. On principle see Pomeroy's Eq., sec. 368; Michel v. St. Louis, 112 Mo. 614; Osborne v. Railroad, 43 F. 824; Sylvester v. St. Louis, 130 Mo. 323; Biddle v. Ramsey, 52 Mo. 151; Insurance Co. v. Landon, 56 N.J.Eq. 513; Kellogg v. Bank, 42 N.Y.S. 379; Garrison v. Insurance Co., 19 How. (U.S.) 312; Waterworks v. Yeomans, L. R. Ch. App. (1866); Railroad v. Implement Co., 57 F. 42; Railroad v. Schnyer, 17 N.Y. 592; Bone v. Platt, 72 Hun, 326; Chicago v. Collins, 49 L.R.A. 408; Emigrant Co. v. Guinault, 37 F. 523; 4 Joyce on Insurance, secs. 2519-3472; Pomeroy's Equity, secs. 243-275. (2) The petition is not multifarious, nor does it attempt to combine eleven distinct causes of action into one. Insurance Co. v. Virginia, etc., supra; Walker v. Powers, 104 U.S. 345; DeForest v. Thompson, 40 F. 375. (3) This proceeding does not deprive the defendants and appellees of the constitutional right of a trial by jury. The petition presents matters of equitable cognizance. This being true, the appellants have the right to resort to a court of equity. The constitutional amendment does not affect the proceedings in equity. Shields v. Thomas, 18 How. 269; Barton v. Barbour, 104 U.S. 126; Insurance Co. v. Virginia, etc., supra. (4) The gravamen of this petition is, that in the action at law complete justice cannot be done. The necessity of ascertaining what the real loss is and apportioning the loss between the insurance companies gives a court of equity jurisdiction. Simpson v. Treat, 126 F. 1002; Insurance Co. v. Virginia, etc., supra. (5) Community of interest of the defendant insurance companies in every question of law and fact involved in the controversies presented by this action, the inadequacy of the eleven actions at law to attain the ends of justice, a great inconvenience and the expense for all parties in the determination of the controversies in separate suits, are sufficient grounds to sustain the jurisdiction of a court of equity to prevent a multiplicity of suits. Wyman v. Bowman, 127 F. 262; Insurance Co. v. Van Clever, 61 N.E. 94; Lung v. Jackson, 85 F. 504; 1 Pomeroy's Eq., sec. 269; DeForest v. Thompson, 40 F. 375; Prentice v. Duluth, 58 F. 441; Tisdale v. Insurance Co., 84 Miss. 709.
Avery & Woolfolk and Barclay, Fauntleroy & Cullen for respondents.
(1) The petition is fatally deficient and the demurrer was on that account well taken. There is no contribution among underwriters of fire policies where each contract of insurance contains the American (standard form) stipulation for pro rata liability as to each company, as here appears. Lucas v. Ins. Co., 6 Cow. 638; Turnbull v. Ins. Co., 86 Ky. 230; Deming v. Merchants' Co., 90 Tenn. 306; Fitzsimmons v. Ins. Co., 18 Wis. 234; Brown v. Ins. Co., 77 Md. 64. The early English rule of contribution is changed by the "American clause" now in use, the history of which is sketched in Alliance Assn. Co. v. Insurance Co., 8 La. 121; Peters v. Insurance Co., 5 Serg. & R. 481. (2) Even if there was a right of contribution among the insurers, it would be res inter alios acta as to the insured, on the facts here disclosed, when as to him the pro rata liability clause is in force in his policy as to each insurer interested. Each contract is separate and independent. 1 Pomeroy, Eq. Jur., p. 163, sec. 178; Koob v. Ins. Co., 113 Ky. 360; Good v. Ins. Co., 43 Ohio St. 394. (3) The loss insured against having occurred, each plaintiff in the suit at bar has a plain, adequate and complete remedy at law if sued on its own policy (even if the policy is avoidable for fraud), and hence there is no lawful ground to apply equity jurisdiction and thereby to deprive the insured of trial by jury on any issues arising under the policy. Ins. Co. v. Hoover Co., 173 F. 888; Imperial Ins. Co. v. Gunning, 81 Ill. 236; Lumber Co. v. Hayward, 20 F. 425; Ins. Co. v. Morlman Co., 73 F. 68. (3) Where an action at law is pending, involving the identical subject of litigation sought to be raised by later suit in equity, the court should decline to entertain the latter, since where matters are subject to concurrent jurisdiction that which first attaches should go on to the close. Smith v. McIver, 9 Wheat. 532. This rule applies to cases of jurisdiction concurrent at law and in courts of equity. 1 Pomeroy, Eq. Jur., sec. 179; Connell v. Yost, 62 W.Va. 66; Pratt v. Northam, 5 Mason, 105. (4) "Multiplicity of suits," on the facts here exhibited, furnishes no ground for the interposition of equity, the effect of which would be to prevent a trial by jury of the issues arising under each insurance policy, after the risk assumed and insured against has merged into a loss. Ins. Co. v. Hoover Co., 173 F. 888; Ins. Co. v. Amus. Co., 178 F. 519; Scruggs v. Ins. Co., 176 F. 226; Turner v. Mobile, 135 Ala. 73; Thomas v. Canning Co., 92 F. 422. (5) The petition is fatally deficient in that several causes of action have been improperly united therein (as the demurrer assigns), for even if each company had an equity for cancellation of its own policy, it would have no such equity as to the policy of any other insurer. The jointure of such causes would be illegal and irregular, as appears on the face of the petition for each of such causes would not "affect all the parties to the action." R. S. 1909, secs. 1795, 1800; Dodd v. Hartford, 25 Conn. 238; Insurance Co. v. Turnbull Co., 86 Ky. 230. (6) One of the eleven alleged insurers (the Phoenix Town Mutual) is omitted and is not made a party plaintiff and is not accounted for. It hence could not be included in the "apportionment" of loss, alleged to be so imperative as to form a ground for equitable jurisdiction. This defect of parties is specifically assigned in the demurrer, and is clearly fatal to the suit. R. S. 1909, sec. 1800.
The plaintiffs and appellants are ten fire insurance companies named in the petition as follows: Insurance Company of North America of Philadelphia, Allemannia Insurance Company of Pittsburg, American Insurance Company of Boston, Firemen's Insurance Company of Newark, New Jersey, German American Insurance Company of New York, Insurance Company of the State of Illinois, Michigan Fire and Marine Insurance Company of Detroit, Pennsylvania Fire Insurance Company of Philadelphia, Phoenix Insurance Company of Hartford, Connecticut, Royal Insurance Company of Liverpool, England. The defendants are P. H. Cullen, O. H. Avery, E. B. Woolfolk, T. T. Fauntleroy, Shepherd Barclay and S. J. Rosenthal.
The statements of the petition, so far as they are necessary to the consideration of the questions presented for decision in this case, are substantially as follows: That the ten plaintiffs, together with the Phoenix Town Mutual Fire Insurance Company of St. Louis, Missouri, during the month of April, 1905, issued to one S. J. Rosenthal their several policies to the aggregate amount of eleven thousand five hundred dollars, insuring him against loss or damage by fire to an amount not exceeding the amounts named in their several policies, upon his stock of furnishing-goods, notions clothing, shoes, hats, caps and other merchandise, while located and contained in the brick building situated at 2137 Franklin avenue in the city of St. Louis, and that on the 9th day of May, 1905, a fire occurred in said premises whereby a portion of the property was partially destroyed. On or about the 19th day of the same month Rosenthal met the representatives of each of the insurance companies at the scene of the fire, and demanded payment from each of them to the full amount of its policy. Thereupon the companies demanded of Rosenthal that he make proofs of his loss according to the terms of the policies. He promised to furnish such proofs, but afterwards neglected and refused to do so; and about the 22d day of June, 1905, assigned the said policies by indorsement in writing as follows: The policies of the Insurance Company of the State of Illinois, the Phoenix Town Mutual, and the Royal Insurance Company of Liverpool, England, to the defendant O. H. Avery; the policies of the Allemannia Insurance Company, the Michigan Fire and Marine Insurance Company and Phoenix Insurance Company, to the defendant E. B. Woolfolk; and on August 1, 1905, assigned by similar indorsement the policies of the American Insurance Company, the Firemen's Insurance Company, the German American Insurance Company, the Insurance Company of North America and the Pennsylvania Fire Insurance Company to the defendant P. H. Cullen. On the 9th day of August, 1905, Cullen brought his five...
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