Parkway, Inc. v. United States Fire Insurance Company& Others.
| Decision Date | 28 October 1943 |
| Citation | 314 Mass. 647,51 N.E.2d 436 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | PARKWAY, INC. v. UNITED STATES FIRE INSURANCE COMPANY& others. |
October 6, 1943.
Present: FIELD, C.
J., LUMMUS, DOLAN COX, & RONAN, JJ.
Equity Jurisdiction, Multiplicity of actions, Remedy at law. Insurance, Fire: apportionment of loss among insurers.
The provision of a Massachusetts standard fire insurance policy, that, if there is other insurance upon the same property, the insurer shall be liable for "no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured," has reference only to valid insurance.
After damage by fire to property covered by several fire insurance policies separately issued by different companies, where each policy provided that the insurer thereunder should be liable for "no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured" on the property and a controversy had arisen among the insurers owing to a denial of liability by two of them, a court of equity had jurisdiction, on the ground of prevention of multiplicity of actions, of a suit by the insured against all the insurers to have such controversy determined and the insurers ordered to pay him the amounts for which they severally might be found liable.
BILL IN EQUITY filed in the Superior Court on May 15, 1942. A demurrer was heard by Brown, J.
P. D. Turner, (C.
W. Spencer with him,) for the plaintiff.
C. W. O'Brien for the defendants.
The plaintiff brings this bill against four insurance companies which by separate policies severally insured the personal property of the plaintiff against loss by fire. The aggregate amount of the insurance was $8,500, and the loss sustained by the plaintiff from fire on June 4, 1941, was $3,700. Each policy contained a provision in accordance with the Massachusetts standard policy (G. L. [Ter. Ed.] c. 175 Section 99, Ninth), which provides that in the event of loss the company issuing the policy shall be liable for "no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured" on the same property. Two of the insurers, whose policies aggregate $3,500, deny liability, contending that the policies issued by them had not become effective at the time of the fire. The other two insurers oppose that contention, and assert that all the policies must be included in the total insurance in computing the proportionate liability of the several insurers. The bill prays that this controversy may be determined, and that the several insurers may be ordered to pay to the plaintiff the amounts for which they severally are found to be liable. The two insurers that deny liability demurred for misjoinder of defendants, for want of equity, and because the plaintiff has a plain, adequate and complete remedy at law. Their demurrer was sustained on the two grounds last stated, and the bill was dismissed as to them with costs. The plaintiff appealed from the interlocutory decree sustaining the demurrer, and from the final decree.
The provision limiting the liability of the several insurers to a proportion of the whole loss on the property insured, has reference only to valid insurance. Policies that insured the same property in form only, but not in reality, are immaterial. Bardwell v. Conway Mutual Fire Ins. Co. 118 Mass. 465, 469. Austin v. Dixie Fire Ins. Co. 232 Mass. 214 . Fegelson v. Niagara Fire Ins. Co. 94 Minn. 486. Mechanics' Ins. Co. v. C. A. Hoover Distilling Co. 173 F. 888, 32 L. R. A. (N. S.) 940. See also Thomas v. Builders' Mutual Fire Ins. Co. 119 Mass. 121; Hayes v. Milford Mutual Fire Ins. Co. 170 Mass. 492 , 496. In this respect the provision of the Massachusetts standard policy differs from the one found in some reported cases which limited the liability to the proportion of the loss that the amount of the policy bore to the whole insurance on the property, "whether valid or not." Scruggs & Echols v. American Central Ins. Co. 176 F. 224. Dixie Fire Ins. Co. v. American Confectionery Co. 124 Tenn. 247, 34 L. R. A. (N. S.) 897. Though the obligation of each insurer depends on that of every other insurer, the obligation of each is several, and there can be no contribution in any legal sense. Bardwell v. Conway Mutual Fire Ins. Co. 118 Mass. 465 , 468. Austin v. Dixie Fire Ins. Co. 232 Mass. 214 , 218. Hanover Fire Ins. Co. v. Brown, 77 Md. 64, 72-74. See Quintin v. Magnant, 285 Mass. 450 .
We may lay aside as not in point cases in which equity jurisdiction existed independently of the prevention of multiplicity of suits, as in cases of bills for injunction against repeated or continuing trespass, nuisance, or interference with easements or watercourses, and the question decided was whether a plaintiff might join a number of defendants whose independent acts contributed to interfere with his right (Mayor of York v. Pilkington, 1 Atk. 282; Smith v. Bivens, 56 F. 352; Lockwood Co. v. Lawrence, 77 Maine, 297; Warren v. Parkhurst, 186 N.Y. 45; Fidelity Union Trust Co. v. Cochrane, 116 N. J. Eq. 190; Boston & Maine Railroad v. Sullivan, 177 Mass. 230; Pomeroy, Eq. Jur. [5th ed. 1941] Section 261 t; Note 9 Am. L. R. 939), or whether plaintiffs having several interests injured by the same wrong might join in a bill. Cadigan v. Brown, 120 Mass. 493. Greene v. Canny, 137 Mass. 64 , 69. Smith v. Smith, 148 Mass. 1 . Stevens v. Rockport Granite Co. 216 Mass. 486 , 493. Zimmerman v. Finkelstein, 230 Mass. 17 . Stodder v. Rosen Talking Machine Co. 241 Mass. 245, 249. Yaskill v. Thibault, 273 Mass. 266 , 268. Strobel v. Kerr Salt Co. 164 N.Y. 303, 323. Ames v. Dorset Marble Co. 64 Vt. 10. Pomeroy, Eq. Jur. (5th ed. 1941) Section 257. See also Wardwell v. Leggat, 291 Mass. 428 , 431. In such cases, "multiplicity is . . . not a reason for getting into equity, but merely for joining or consolidating suits which would be in equity in any case." Chafee, 45 Harv. Law Rev. 1297, 1310.
In the present case no ground for relief under general equity jurisdiction appears, except that of preventing multiplicity of suits. That ground is not specified in our statutes, but falls within the statutory grant of general jurisdiction in equity.
By G. L. (Ter. Ed.) c. 214, Section 1 (amended in an immaterial respect by St. 1935, c. 407, Section 2), the Supreme Judicial Court and the Superior Court are given "original and concurrent jurisdiction in equity of all cases and matters of equity cognizable under the general principles of equity jurisprudence." The Superior Court was given this jurisdiction by St. 1883, c. 223, Section 1. Before 1857 the jurisdiction of the Supreme Judicial Court in equity consisted of specified topics or heads, and, generally speaking, all were qualified by the phrase "when the parties have not a plain, adequate, and complete remedy at the common law." Rev. Sts. (1836) c. 81, Section 8. Gen. Sts. (1860) c. 113, Section 2. When full equity jurisdiction was first given to the Supreme Judicial Court by St. 1857, c. 214, it was expressly limited to cases "where there is not a full, adequate and complete remedy at law." This became the last paragraph of Gen. Sts. (1860) c. 113, Section 2, with the word "full" changed to "plain." This limitation upon general equity jurisdiction was removed by St. 1877, c. 178, Section 1, which became Pub. Sts. (1882) c. 151, Section 4. But a similar limitation was retained in Pub. Sts. (1882) c. 151, Section 2, in which particular topics or heads of jurisdiction were enumerated, as they now are in G. L. (Ter. Ed.) c. 214, Section 3. The Report of the Commissioners for Consolidating and Arranging the Public Statutes (1901), Part III, page 1364, omitted that limitation as "superfluous," and because by recent statutes it had been "done away with to a great extent," and was less applicable to the equitable remedies given by statute, as to which it had been retained, than to the general equity jurisdiction, as to which it had been removed. Accordingly, that limitation did not appear in R. L. (1902) c. 159, Sections 1, 3. While the limitation upon general equity jurisdiction existed, that jurisdiction in Massachusetts was in some respects less broad than that exercised by the courts of England and of other States. Jones v. Newhall, 115
Mass. 244.
Suter v. Matthews, 115 Mass. 253 . Frue v. Loring, 120 Mass. 507 , 509, 510.
Ever since that statutory limitation was removed by St. 1877, c. 178 Sections 1, 2, equity jurisdiction of all cases and matters cognizable under the general principles of equity jurisprudence has existed in Massachusetts in all its amplitude. Billings v. Mann, 156 Mass. 203 , 204. Nathan v. Nathan, 166 Mass. 294 , 295. Noyes v. Bragg, 220 Mass. 106 , 109. Boston v. Santosuosso, 298 Mass. 175 , 180, 182. Boston v. Santosuosso, 307 Mass. 302, 314, 315. Upon those general principles, however, it is only in a limited class of cases where jurisdiction is concurrent (Jones v. Newhall, 115 Mass. 244 , 250; Suter v. Matthews, 115 Mass. 253 , 255; Nash v. McCathern, 183 Mass. 345) that a court of equity can take jurisdiction where a plain, adequate and complete remedy at law exists, and the point is properly taken. Walker v. Brooks, 125 Mass. 241 . Maguire v. Reough, 238 Mass. 98. Hooker v. Porter, 271 Mass. 441 , 447. Proctor v. MacClaskey, 278 Mass. 238, 242. Knowlton v. Swampscott, 280 Mass. 69 , 72. Broadway National Bank of Chelsea v. Hayward, 285 Mass. 459 , 466. But unless the objection that a plain, adequate and complete remedy at law exists is in the particular case truly jurisdictional (Maley v. Fairhaven, 280 Mass. 54; Jones v. Jones, 297 Mass. 198 , 202), it is waived unless seasonably taken and consistently pressed. Baker v....
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