Torres v. Aetna Casualty & Surety Co.

Campbell, J. G.S. 1-69 provides:. “Who may he defendants. — All persons may be made defendants, jointly, severally, or in the alternative, who have, or claim, an interest in the controversy adverse to the plaintiff, or who are necessary parties to a complete determination or settlement of the questions involved. In an action to recover the possession of real estate, the landlord and tenant may be joined as defendants. Any person claiming title or right of possession to real estate may be made a party plaintiff or defendant, as the case requires, in such action. If the plaintiff is in doubt as to the persons from whom he is entitled to redress, he may join two or more defendants, to determine which is liable.” This statute was construed in Conger v. Insurance Co., 260 N.C. 112, 131 S.E. 2d 889, and as stated in that case: “The trial of this action will unfold one connected story. It may have one chapter or it may have two, but there is no' logical reason why it should take two law suits to tell it. The whole matter can be completely and finally determined, with all parties before the Court at one time, in one action without embarrassing or prejudicing the rights of either defendant. On the trial plaintiff may be unable to sustain either of the causes she has alleged or, the evidence may require the submission of both causes to the jury under proper instructions The alternative causes are not separate and distinct; they are so interwoven that if one defendant is liable the other is not. Of course, neither may be liable. It seems to us that this complaint, though it contains alternative factual allegations, discloses one of the situations for which G.S. 1-69 was passed sixty-three years after G.S. 1-123.” We think Conger v. Insurance Co., supra, is controlling in this case. With regard to the second ground of demurrer, namely, that the complaint does not state facts sufficient to constitute a cause of action against Security, we are of the opinion that the allegation in the complaint, “(t)hat the policy issued by the defendant, Security General Insurance Company, afforded liability insurance protection to Michael Zeb Smith under the provisions of said policy and by statute”, is sufficient to withstand the demurrer. Affirmed. BRItt and Morris, JJ., concur.