Tisdale v. Three Insurance Companies

• Decision Date: 09 May 1904
• Citation: 36 So. 568,84 Miss. 709
• Court: Mississippi Supreme Court
• Parties: WILLIAM A. TISDALE v. THREE INSURANCE COMPANIES

36 So. 568

84 Miss. 709

WILLIAM A. TISDALE v. THREE INSURANCE COMPANIES

Supreme Court of Mississippi

May 9, 1904

March 1904

FROM the chancery court of Covington county HON. STONE DEAVOURS Chancellor.

The Insurance Company of North America, the Aetna Insurance Company of Hartford, Connecticut, and the Philadelphia Underwriters Insurance Company of Philadelphia, appellees were complainants, and Tisdale, appellant, was defendant in the court below. From a decree favorable to complainants, the insurance companies, the defendant appealed to the supreme court.

Tisdale was the owner of a storehouse in the town of Collins, in which he carried on a drug business. He was insured in three different companies against loss by fire, as set out in the opinion of the court. In January, 1903, the building was destroyed by fire, and there was a partial loss of the stock of merchandise. He filed three separate suits--one against each company--in the circuit court of Covington county demanding the face of each policy. The several defendants appeared, and filed pleas setting up exactly the same defenses. They afterwards filed the bill in this case in the chancery court of Covington county, setting out these facts and charging that all three of the complainants had issued policies covering the same property of the defendant, and that the several policies were concurrent insurance on the same property; that they were being sued in three separate suits at law; that the defenses of each defendant to the several suits were identical, and that each of said suits was about the same subject-matter, and involved common principles of law, and the same facts, and the liability to defendants of each is not independent, but is a concurrent liability; that in separate suits at law it is impossible to determine the equitable rights of complainants and the defendant under said policies, by reason of the inadequacy and insufficiency of the remedy at law in separate suits to marshal and ascertain the real liability of complainants, and because said suits involved identical questions of defense, and a multiplicity of suits of common questions of law and fact, and over property in which complainants and defendant have common and mutual interests, and the court of law cannot do justice between the parties in said suits; that the stock of merchandise, after the issuance of the several policies, changed in specifics and quantity, in the usual course of trade, and at the time of the fire there was not an actual loss to the amount claimed by the defendant in the said suits; that the inventory, books, and proof of loss presented by defendant are untrue, incorrect, false, and fraudulent, and in no sense comply with the requirements of the policies and the law. Complainants offer in their bill to pay whatever amount may be ascertained to be due by each of them. The defendant demurred to the bill, and moved to dissolve the injunction restraining said suits at law. The demurrer was overruled, and the motion to dissolve the injunction was also overruled. From that decree defendant appeals.

Affirmed and remanded.

Alexander & Alexander, for appellant.

[The brief of counsel for the appellant was lost or withdrawn from the record before it reached the reporter.]

Williamson & Wells, for appellees.

This bill should be sustained on the sole ground that it presents a multiplicity of suits

Tisdale owned a stock of merchandise and desired to insure it against loss by fire. The stock of goods was worth, when insured, $ 2, 500. It constantly changed, specifies and quantities. One of the complainant companies entered into contract to insure against loss to the extent of $ 1, 000, the other two assumed liability for $ 750 each, in case of fire it being agreed between the assured and each of the companies that concurrent insurance might be taken on the stock of goods not to exceed $ 2, 500 in all; it being stipulated in each contract that in case of fire the company should be liable for its proportional share of the loss or damage sustained, not to exceed the amount of the face of the policy issued by it. These three companies joined in indemnifying Tisdale against loss by fire to the amount of $ 2, 500, which sum was fixed by all parties as the value of the stock of merchandise at the time the insurance was issued, and this was the maximum amount of insurance assured could carry on it, and the several contracts stipulated what portion of the value of the stock so fixed, each company would insure, and what portion of loss each assumed to pay in case of...