M. Pretzfelder & Co. v. Merchants' Insurance

Clark, J. : The plaintiff was insured in several companies, the contract with each containing the provision that *496 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 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 misjoin-der of causes of action, the court may allow the action to be divided; ( Code, Sec. 272, Hodges v. Railroad, 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 misjoin-der 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. *497 Tbe parties were thus relegated to their legal rights, and the action can be 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, fail 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.