Summary
In Pretzfelder v. Insurance Co., 116 N.C. 491, there were several insurance policies in different companies, the policies having been taken out at different times, but each containing a provision that the loss should be prorated according to the amount in the several policies.
Summary of this case from Ayers v. BaileyOpinion
(February Term, 1895).
Practice — Joinder of Actions — Action Against Several Insurance Companies — Arbitration — Failure of Arbitrators to Agree.
1. Where plaintiff's property was insured in several insurance companies, the contract with each containing the provision that plaintiff's right of recovery against each should be limited to the proportion of the loss which the amount of the policy issued by each company bore to the total amount of insurance, it was no misjoinder, but essentially proper, that all the companies should be made parties defendant in one and the same action to recover for the destruction of such property by fire.
2. In such case the verdict "affects all parties to the action" and the joinder is permissible under Section 267 of The Code.
3. Where arbitrators, or a majority of them, fail to agree upon an award, and the parties cannot agree upon other arbitrators, they are relegated to their legal rights and an action may be maintained.
ACTION, heard before Hoke, J., at August Term, 1894, of GUILFORD, on demurrer to the complaint.
The action was brought against several insurance companies whose policies the plaintiff held, to recover for the damage done to his stock of goods by fire.
(495) The demurrer was overruled and defendants appealed.
Dillard King and Jas. E. Boyd for plaintiff.
McRae Day and J. W. Hinsdale for defendants.
The plaintiff was insured in several companies the contract with each containing the provision that the plaintiff's right of recovery against each was limited to the proportion of the loss which the amount named in the policy of each company should (496) bear to the whole amount insured. It is not only no misjoinder, but essentially proper that all the companies should be made parties defendant. If each company should be sued separately, not only would the same proposition of law arise and the same evidence be gone over in five different actions at an expense of five times the amount of court costs, and much needless consumption of the time of the courts, but as the trial would be before five different juries the loss might be assessed at five different amounts. There is no method to gauge accurately the pro rata loss of each company so readily as by one verdict and one apportionment, according to the varying amount of risk taken by each company. By their stipulation to apportion the loss the companies have, to that extent at least, made the five policies one contract, the amount of damages accruing upon which should be assessed and apportioned in one joint action. Adams' Eq., 200; 1 Pomeroy Eq. Jur., section 245, 274; Black v. Shreeve, 3 Hals, ch. 440, 456. The verdict necessarily "affects all parties to the action." The joinder is therefore within the purview of The Code, sec. 267. Hamlin v. Tucker, 72 N.C. 502; Young v. Young, 81 N.C. 91; Heggie v. Hill, 95 N.C. 303. Where there is a misjoinder of causes of action, the court may allow the action to be divided (Code, sec. 272; Hodges v. R. R., 105 N.C. 170); or, where there is a misjoinder of parties, the court in its discretion can do the same (Code, sec. 407; Bryan v. Spivey, 106 N.C. 95); but, here, there is neither misjoinder of parties, nor of causes of action.
The arbitrators were appointed but disagreed and refused to go on, and finally broke up without making an award. Subsequent attempts to agree upon another board failed. The parties were thus relegated to their legal rights, and the action can be (497) maintained. Brady v. Ins. Co., 115 N.C. 354. Indeed, as intimated in that case, we think the proper rule is laid down in Ins. Co. v. Holking, 115 Pa., 416, that where the arbitrators, or a majority of them, failed to agree upon an award, the plaintiff (unless he is shown to have acted in bad faith in selecting his arbitrator) is not compelled to submit to another arbitration and another delay, but may forthwith bring his action in the courts.
No error.
Cited: Blackburn v. Ins. Co., post, 824; Cook v. Smith, 119 N.C. 355; Daniels v. Fowler, 120 N.C. 17; Pretzfelder v. Ins. Co., 123 N.C. 166; Weeks v. McPhail, 128 N.C. 138; Fisher v. Trust Co., 138 N.C. 242; Ayers v. Bailey, 162 N.C. 211; Lee v. Thornton, 171 N.C. 214.