Markey v. Mutual Ben. Life Ins.

SHEPLEY, Circuit Judge. The frame of the bill does not sustain the position that it was brought for a single object, namely, the delivery to the complainant of the policy of insurance to enable her to maintain a suit at law. [The bill is two-fold. It seeks discovery and production of the original application for a policy of insurance and also of a policy of insurance alleged to have been made by the defendants in accordance with the application, such discovery and production being sought to enable her to maintain her suit at law. It seeks, secondly, not the mere discovery' and production of the policy of insurance to be used as evidence in the suit at law, but a specific performance of an alleged agreement to deliver a policy of insurance, and a decree for a delivery of the policy to the complainant.]2 This sufficiently appears from the prayers of the bill, which are, first, that the said defendants may discover and produce the original application for a policy of insurance and the policy of insurance made by them; second, that the said defendants may be decreed to deliver the said policy' of insurance, and that the terms of the agreement for a policy' of insurance may be specifically performed, etc., and a prayer for general relief. Such a misjoinder of a bill for discovery in aid of a suit at law, and a bill for the specific performance of a contract to deliver a policy and a decree for such delivery, constitutes multifariousness, and is fatal to the bill, [upon demurrer, even if there were not other fatal objections to the bill in each of its branches, separately considered.] Where a bill contains several distinct grounds of a suit in equity, which cannot properly be joined, it is bad for multifariousness, and one test of this is, that the bill prays for multifarious relief. Daniell, Ch. Prac. 342, and notes; Story, Eq. Pl. § 280; Shackell v. Macaulay. 2 Sim. & S. 79; Dew v. Clarke, 1 Sim. & S. 108.. 2. The bill cannot be maintained as a bill for discovery in aid of a suit at law. for two reasons: First, that there is no allegation that it is material that the complainant should have the discovery, which allegation is material. Gelston v. Hoyt. 1 Johns. Ch. 547; Heath v. Erie Ry. Co. [Case No. 6,307]. [The allegation in the bill is not of any inability' to prove the contents of the application or policy, or of any inability to have them produced in evidence in the court below, but only that the orator “is advised that in accordance with the decisions of the supreme judicial court of the commonwealth of Mass [761] achusetts, she cannot safely proceed in said suit without a delivery to her of the said policy; and your orator has requested the said defendants to deliver to her the said policy, but they have refused, and still refuse, to deliver to her the same.” The allegation that defendants have refused, and still refuse to deliver to her the policy, is not inconsistent with their entire willingness to produce and discover the paper in evidence. On the contrary, the allegations in the bill tend to show that there would be no difficulty on the part of the plaintiff in proving the contents of the application and policy, and no reason is perceived why, if the papers are in existence, their production in evidence might not be enforced by any court of common law jurisdiction without the intervention of a court of equity. This allegation in the bill that the plaintiff is advised that she cannot safely, proceed in the suit at law without a delivery of the policy, seems not to refer to any supposed need of production and discovery, but is evidently inserted as a necessary averment to sustain that other distinct ground of relief sought in the bill, namely the specific performance of a contract to deliver a policy of insurance.]2 Secondly, there is no allegation in the bill that the court of law in which the case is pending cannot compel the discovery. Courts of equity do not interfere when discovery is sought in aid of proceedings in some other court, and the court itself in which the trial is to be had can itself compel the discovery required. Kerr, Disc. pp. 9, 10; Dunn v. Coates, 1 Atk. 288. [There is not only no allegation that the production of the application and the policy is withheld or resisted, but]2 the statutes of Massachusetts afford to the complainant every opportunity to obtain production of these papers that is asked for by the present bill. 3. The bill cannot be maintained for the specific performance of an agreement to deliver the contract of insurance. The agreement to make and deliver the policy is alleged to have been made early in the month of November, 1803. and the breach of the agreement and the death of the party whose life was to have been insured by the policy to have both happened during the same month. This bill was filed May 20,1870, more than ten years after the cause of action accrued. These facts showed such laches as [aside from the express bar of the statute of limitations]2 would deprive the complainant of any right to the discretionary relief prayed for, and this objection may be taken on demurrer. Story, Eq. Pl. §§ 484, 503; Maxwell v. Kennedy, 8 How. [49 U. S.] 210, 217. The defendants, though a foreign corporation, by the provisions of the general statutes of Massachusetts have an agent in the commonwealth on whom service might have been made. Under these circumstances, the bar of the statute of limitations, which binds courts of equity as well as law, also applied to this case., [The object of this bill seems to be after a lapse of ten years to transfer to this court a litigation which has long been pending, and three times tried in the courts of the commonwealth, and which after this lapse of time and in this manner cannot thus be transferred to this tribunal.]2 Demurrer sustained; bill dismissed. Footnotes [2] [From 6 Ins. Law J. 537.] [2] [From 6 Ins. Law J. 537.] [2] [From 6 Ins. Law J. 537.]