Opinion
No. 32329.
November 2, 1936.
1. INSURANCE.
Beneficiary's complaint in action on life policy alleging that there was valid policy on insured's life at time of death and alleging that beneficiary had complied with conditions of policy held demurrable for failure to allege that all premiums due had been paid, since word "valid" did not necessarily imply payment of premiums, and payment was condition to be performed by insured (Code 1930, sec. 561.)
2. INSURANCE.
In action on life policy, defect in beneficiary's complaint which failed to allege that all premiums due had been paid could be cured by amendment.
3. ACTION.
Beneficiary's complaint in action on life policy joining as defendants other parties who claimed proceeds held demurrable for misjoinder, since beneficiary's cause of action was legal, not equitable, insurer was only "necessary party," and other parties would not be affected by judgment or decree in action by beneficiary alone.
APPEAL from the chancery court of Adams county. HON. R.W. CUTRER, Chancellor.
Brandon Brandon, of Natchez, for appellant.
If the complainant in her bill has stated any cause of action whatsoever against this appellant, which is denied, such is an action at law as to which this appellant is entitled to a trial by jury upon the issues involved. Therefore, the first demurrer should have been sustained.
As to the first ground mentioned in the second general demurrer, we respectfully submit that no averment being contained in the bill of complaint as to payment of premiums by the insured in his lifetime, the bill fails completely to state any cause of action whatsoever.
33 C.J., page 85, Insurance, sec. 798; Penn Mutual Life Ins. Co. v. Keeton, 95 Miss. 708, 49 So. 736.
We respectfully submit that this bill of complaint is defective for misjoinder of parties and because multifarious, unless the same in the form drawn can be sustained upon the equitable principle of allowing the joinder of many persons and many causes of action to avoid a multiplicity of suits. Therefore, it seems to us that the questions raised by the special demurrer can be determined by considering this last mentioned question, that is to say, does the bill state a cause or sufficient facts to invoke equity jurisdiction to avoid a multiplicity of suits? If it does not, then we respectfully submit the bill of complaint is defective as tested by the special demurrer, and the special demurrer must be sustained.
Ordinarily, equitable intervention is sought by injunction in behalf of one who is vexed or threatened with a multiplicity of suits.
Griffith's Mississippi Chancery Practice, sec. 439, page 462.
To dispose of this question we feel that we cannot do better than to refer the court to the authorities cited by Mr. Justice GRIFFITH in his above mentioned text:
Telephone Co. v. Williams, 101 Miss. 1, 57 So. 559; Newton Oil Co. v. Sessums, 102 Miss. 181, 59 So. 9; Gulf, etc. v. Walker, 103 Miss. 836, 60 So. 1014; Newell v. I.C.R. Co., 106 Miss. 182, 63 So. 351; N.O.M.C.R. Co. v. Martin, 105 Miss. 231, 62 So. 228; Tribette v. R.R., 70 Miss. 182, 12 So. 32.
There being no jurisdiction in equity then the bill is defective for misjoinder of parties and is multifarious. It is not competent, without independent equity jurisdiction, to join in one action conflicting and different causes of action, or to join parties having no interest in the subject matter of the suit. This appellant is in no wise interested in the dispute which complainant in her bill says exists between herself and her predecessor in matrimony as to the right to the personal estate of the deceased Richard Coleman; and should not be called upon to enter into that controversy, or to sit by while same is being litigated. This is not the proper cause for the trial of that issue if any such in fact exists.
The controversy between the appellant and the appellee is clear and simple — it should not be confused or beclouded with other foreign issues unnecessary to a determination of the one issue involved, i.e., the liability vel non of the insurance company to the said Bertha Coleman upon the policy sued upon. No practical convenience to the court or any party can be served by joining herein, as parties defendant, or otherwise, the administratrix of the estate of Coleman, the daughter of Coleman, or the woman who, it is said, claims yet to have been the lawful wife of Coleman at the time of his death.
Griffith Mississippi Chancery Practice, sec. 142.
Engle Laub, of Natchez, for appellee.
In the case of Blumer v. Ulmer, 44 So. 161, it was held that: "Equity has jurisdiction of a suit by several depositors of an insolvent bank against the directors for deceit in inducing complainants to make deposits when the bank was insolvent, in order to prevent a multiplicity of suits, though the cause of action of each depositor, if asserted alone, would properly be at law."
This case in that principle is similar to the instant case here now except that instead of suit being brought by several depositors as complainants, several interested parties in the insurance are made defendants.
These could have joined as complainants or plaintiffs, but not having done so they are made defendants. However, the same principle obtains and a multiplicity of suits is avoided by the bringing of the one suit in chancery.
G. S.I.R. Co. v. Barnes, 48 So. 823, 94 Miss. 484; Middleton v. Howell, 90 So. 725, 127 Miss. 880.
The interest of all parties in this suit had a common origin, that is, the insurance policy on Richard Coleman, and all of them flowed from that center and radiated therefrom and had a common connecting link therewith, and equity had a right to retain jurisdiction even though it required adjudicating separate rights of the several parties, to-wit, the complainant, the widow, Sarah McCoy who claimed to be the wife, the interest of the minor child who would take equally with Sarah McCoy, the wife in event that Bertha Coleman was held not to be the wife.
Pitts v. Carothers, 120 So. 830, 152 Miss. 694.
We respectfully submit that the remedy in law in this case would have required several suits to adjudicate the rights of all the parties to the policy herein, whereas by bringing this one suit in chancery the rights of all parties as against the insurance company and as between themselves can be adjudicated and defined in the one suit.
Hart v. Moore, 158 So. 490, 171 Miss. 838.
We therefore respectfully submit that the chancellor was correct in overruling the first general demurrer.
As to the second general demurrer, the demurrer admits the allegations of the bill of complaint, that is, that there was a valid policy of insurance and that all of the terms of the policy had been complied with in all manners whatsoever, as set forth in the bill of complaint.
The allegation in the bill of complaint that there was a valid policy and that complainant had complied with all of the terms and conditions of said policy of insurance in all manners whatsoever, we submit most certainly sufficient to allege that all the terms and conditions of the policy had been met, including payment of premiums and such other terms and conditions as might be therein contained, and that this is particularly true on demurrer which admits to the strongest extent all allegations of the bill of complaint.
Edwards v. O'Neal, 28 S.W.2d 569; 8 Words Phrases (1 Ed.),
All of the defendants in this cause were proper parties.
Griffith's Chancery Practice, pars. 141, 142, 206; Neylan v. Burge, 22 Miss. 205.
We respectfully submit that there was equitable principle upon which jurisdiction in chancery of this cause can be maintained and that the chancellor was correct in overruling all of the demurrers interposed herein.
Argued orally by Gerard Brandon, for appellant.
This is an appeal from a decree overruling a general and a special demurrer to a bill of complaint. The complainant, the appellee here, is a beneficiary in a life insurance policy issued by the appellant to Richard Coleman. The defendants to the bill of complaint are the appellant, the company which issued the policy, Sarah McCoy, Sarah Coleman, and Bertha Coleman, administratrix of the estate of Richard Coleman. The purpose for which the persons other than the insurance company were made defendants to the bill will hereinafter appear.
The allegations of the bill of complaint, in substance, are: The Standard Life Insurance Company of the South issued to Richard Coleman, alleged to be the husband of the complainant, Bertha Coleman, an insurance policy payable on his death to Bertha, a copy of the policy being filed as an exhibit to the bill. The policy provides for the payment of weekly premiums thereon of forty cents each; it contains an "accidental death benefit" clause by which if death of the insured was accidental within the terms of the policy, double the face of the policy would be paid to the beneficiary. Richard Coleman was shot and killed by Bertha, his wife, who was thereafter indicted therefor, tried and acquitted. The complainant has been appointed, and has qualified, as administratrix of the estate of Richard Coleman. Sarah McCoy claims that she married Richard Coleman prior to his marriage with the complainant, and is his widow, entitled to participate in the proceeds of the insurance policy. Sarah Coleman is the daughter of Richard Coleman and the complainant. The marriage of Sarah McCoy and Richard Coleman is denied, but is alleged to be here immaterial for the reason that the policy is made expressly payable to Bertha Coleman. Sarah McCoy is alleged to be a proper defendant, so that her claim to the proceeds of the policy as the widow of Richard Coleman may be adjudicated; and for the further reason, along with Sarah Coleman and Bertha Coleman, administratrix, so that in event it should appear that Richard Coleman was feloniously killed by the appellee, which fact the bill denied, and the court should hold that for that reason she cannot recover on, or share in the proceeds of, the policy, they may assert the right, if any, of Richard Coleman's estate thereto.
The Standard Life Insurance Company of the South appeared and filed a general and a special demurrer. The special demurrer challenges, among other things, the joinder of Sarah McCoy, Sarah Coleman, and Bertha Coleman, administratrix, as parties defendant to the bill of complaint.
One of the appellant's complaints is that the bill fails to allege that all premiums due on the policy had been paid. The appellee says that the bill contains two allegations which include the payment of the premiums. These allegations are: (1) "That there was, at the time of the death of the said Richard Coleman, a valid policy of insurance on his life issued by Standard Life Insurance Company of the South, a defendant herein, copy of which is hereunto attached," etc., and (2) "complainant has complied with all of the terms and conditions of said policy of insurance in all manners whatsoever."
The word "valid" as here used does not necessarily imply that the premiums due on the policy had been paid. The second allegation is sufficient to allege the performance of all conditions which the complainant herself must have performed, section 561, Code of 1930, but the payment of premiums was not a condition to be performed by her, but by the insured. This defect, of course, can be cured by amendment.
Coming now to the special demurrer, Bertha Coleman's cause of action on the policy is legal, not equitable, and the only necessary party thereto is the insurance company. If the other parties which the complainant seeks to make defendants to the bill have the right to recover on the policy, they will not be affected by a judgment or decree in an action by Bertha Coleman against the company, and she is concerned only with her own right to recover. Whether the company has the right to itself bring all persons claiming an interest in the policy before the court in one suit is not before us; it is here objecting to that course.
The decree of the court below will be reversed, and the cause will be remanded to the circuit court of Adams county.
So ordered.