Weininger v. Metro. Fire Ins. Co.

• Decision Date: 05 April 1935
• Docket Number: No. 22783.,22783.
• Citation: 359 Ill. 584,195 N.E. 420
• Parties: WEININGER et al. v. METROPOLITAN FIRE INS. CO. et al.
• Court: Illinois Supreme Court

359 Ill. 584

195 N.E. 420

WEININGER et al.

v.METROPOLITAN FIRE INS. CO. et al.

No. 22783.

Supreme Court of Illinois.

Feb. 21, 1935.

As Modified on Denial of Rehearing April 5, 1935.

Bill by Hyman Weininger and others against the Metropolitan Fire Insurance Company and others. Decree for complainants, and defendants appeal.

Affirmed.

SHAW, J., dissenting.Appeal from Superior Court, Cook County; John P. McGoorty, judge.

Samuel Levin, of Chicago, for appellants.

Leonard M. Spira and Soble, Spira & Langelutting, all of Chicago (Simon Herr, of Chicago, of counsel), for appellees.

HERRICK, Justice.

Hyman Weininger, Oscar Weininger, and Jacob Weininger, appellees (hereinafter called the complainants), doing business as H. Weininger & Sons, a copartnership, filed their bill in chancery in the superior court of Cook county against the appellants (hereinafter called the defendants) to recover upon nineteen fire insurance policies, aggregating $25,000, issued to the complainants by the sixteen defendants and to apportion the loss among the defendants. The fire causing the loss was discovered in the complainants' place of business about 9 p. m. on January 18, 1932. The loss claimed in the bill was less than the total amount of the insurance. The trial court determined the loss at $17,781.50, and entered a decree apportioningthat amount amongst the defendants in accordance with their several liabilities under the different policies. An appeal has been prosecuted from that decree direct to this court.

At the threshold of the case, we meet two of the errors assigned: (1) That a court of equity has no jurisdiction of the cause and that the complainants have an adequate remedy at law; and (2) that the defendants were deprived of the right of a trial by jury, in violation of section 5 of article 2 of the state Constitution. The decision of these two controversial issues is necessary before we may determine whether this court has jurisdiction to review the other questions presented.

Each of the policies on which recovery is sought is known as a standard policy, and each contains a provision for prorating the aggregate loss on the property in the proportion that the insurance written under each policy bears to the total insurance carried. The policies involved contain the same standard provisions and requirements, differing only in details as to premiums payable, issuance and expiration dates, amount of policy, and like particulars.

While some cases akin in principle have been before this court heretofore, the precise question for decision here is one of first impression. The modern and progressive rule has been to relax the former unbending rules of multifariousness, and in order to avoid a multiplicity of suits to permit the inclusion of several causes of action growing out of the same set of facts and the same subject-matter, where the same general relief is sought and no undue oppression is worked against the defendants. No inflexible rule can safely be pronounced as to what constitutes multifariousness, nor when a court of equity will refuse to take jurisdiction and remit the parties to the law courts. There are so many divergent and conflicting decisions on the subject that an analysis or review of the different adjudications upon the subject would serve no useful purpose but leave us where we started, confronted with decisions in different jurisdictions of courts of high standing which have arrived at directly opposite results in treating the same subject. Pomeroy's Equity Jurisprudence (4th Ed.) § 245, states: ‘It will aid us in reaching the true theory, as well as in determining the extent and limitations of the doctrine, if we can fix at the outset all the possible conditions in which a multiplicity of suits can arise, and can thus furnish a source of or occasion for the equity jurisdiction in their prevention by settling all the controversy and all the rights in one single judicial proceeding. All these possible conditions may be reduced to the four following classes: * * * 3. Where a numberof persons have separate and individual claims and rights of action against the same party, A, but all arise from some common cause, are governed by the same legal rule and involve similar facts, and the whole matter might be settled in a single suit brought by all these persons uniting as co-plaintiffs, or one of the persons suing for himself alone. * * * 4. Where the same party, A, has or claims to have some common right against a number of persons, the establishment of which would regularly require a separate action brought by him against each of these persons or brought by each of them against him, and instead thereof he might procure the whole to be determined in one suit brought by himself against all the adverse claimants as co-defendants.’ This court has heretofore approved Pomeroy's rule 3 above in the following cases: City of Chicago v. Collins, 175 Ill. 445, 51 N. E. 907,49 L. R. A. 408, 67 Am. St. Rep. 224,German Alliance Ins. Co. v. Van Cleave, 191 Ill. 410, 61 N. E. 94, and Ashley v. Board of Education, 275 Ill. 274, 114 N. E. 20, and has approved the principle announced in rule 4 in North American Ins. Co. v. Yates, 214 Ill. 272, 73 N. E. 423.

It is one of the favorite objects of a courts of equity to do full and complete justice between the parties by avoiding the delays and hardships incident to a multiplicity of suits. McGovern v. McGovern, 268 Ill. 135, 108 N. E. 1024. In the case at bar we have the common right in the complainants against the defendants, the establishment of which would regularly require the bringing of at least sixteen separate law actions. No defendant here has a defense which is personal to it, alone, but the defenses are common to all the defendants. If liable, each is liable for the payment of loss under the same conditions as the others. The record contains over 5,200 pages. While the cost of litigation is not the only criterion, yet in determining whether the defendants are subjected to any hardship by having the issues here tried in equity, the question of expense to the litigants and the time of the court in settling the issues are factors that may properly be considered by the court. If the issues were submitted to sixteen different juries, it is possible that the findings would be varied and conflicting and for different amounts of liability. In fact, it would be possible that in some cases juries might return verdicts for the defendants and in others for the complainants. That there might be very honest differences as to the amount of recovery is demonstrated by the record itself. The master who heard the case found the amount of loss sustained by the complainants at $21,694, while the chancellor fixed the loss at $3,812.50 less. Certainly the case would be very much complicated in arriving at the amount of loss which each company should bear by reason of the pro rata provision of the policies if the several juries deciding the cases should determine the loss at different amounts. The liabilities of the defendants here by reason of the controverted issues as to the amount of loss and the pro rata features of the policies are interrelated and interdependent. There is involved herein, therefore, not only the question of multiplicity of suits, but, if there is a recovery by the complainants, the further fact that when the loss is determined some sort of accounting is necessarily required to fix and prorate the amounts for which the defendants are severally liable. We conclude that the case here presented is a proper one for the assumption of jurisdiction by a court of equity, not only upon the ground of avoiding a multiplicity of suits but also because an accounting is likewise involved. Milwaukee Mechanics' Ins. Co. v. Ciaccio (C. C. A.) 38 F.(2d) 153;American Central Ins. Co. V. Harmon Knitting Mills (C. C. A.) 39 F.(2d) 21.

Since we have resolved the question of jurisdiction against the defendants, it follows that the constitutional question is decided against them. The right of trial by jury guaranteed by the Constitution is only in such actions as were known to the common law. Where equity takes jurisdiction, the defendants are not deprived of their constitutional right to a trial by jury. A trial by jury is not a matter of right in an equity proceeding. Riehl v. Riehl, 247 Ill. 475, 93 N. E. 318; North American Ins. Co. v. Yates, supra; Turnes v. Brenckle, 249 Ill. 394, 94 N. E. 495;Keith v. Henkleman, 173 Ill. 137, 50 N. E. 692;Barton v. Barbour, 104 U. S. 126, 26 L. Ed. 672.

The complainants, under provisions of the policies, were, on demand of the defendants, examined by them under oath prior to the commencement of the present proceeding. It is now urged that the present proceeding. to answer certain alleged material questions propounded to them on such examination. The refusal to answer such questions was on the advice of an adjuster representing the complainants. The complainants apparently were thoroughly examined upon all the material issues. The record of such examination covers approximately 300 pages in the record and was conducted by the defendants' adjusters and an attorney. Refusal to answerthe questions did not, under the terms of the policy, work a forfeiture. Such refusal might effect an abatement of the suit as being prematurely brought because of a requirement in the policy that the insured should submit to an examination under oath, and a further provision that no suit or action on the policy should be sustainable ‘until after full compliance by the insured with all the foregoing requirements.’ However, the defendants are not in a position here to raise the issue of the refusal of the complainants to answer any of such questions. No plea in abatement of the writ was filed. The issue cannot be raised by a plea in bar or by answer, but must be raised by plea in abatement of the writ. Weide v. Germania Ins. Co., Fed. Cas. No. 17,358, 1 Dill....