Page:The Green Bag (1889–1914), Volume 18.pdf/426

 FIRE INSURANCE LITIGATION defense is raised that the policy had been cancelled or that there had been no delivery of the policy or meeting of minds upon the contract in the first place, as in the case of Partridge v. Milwaukee Mechanics Ins. Co. (1897) 13 App. Div. (N. Y.) 519. More over, no matter what form the pro rata clause takes, it still makes all the insurers interested in and affected by the question of the amount of the loss; and makes it proper in equity and justice that one ques tion should be settled once and for all in a single action, lest several juries differ as to the amount of loss and the plaintiff thereby in his many actions fail to get complete indemnity. The true principle, aside from statutory provisions, upon which joinder of the sev eral causes of action should be allowed in these cases is equitable, as is indicated in most of the authorities cited above, and the relief should of course be sought in the equity courts. The Texas decision, how ever, which is cited above (Hartford Fire Insurance Co. v. Post) appears to have been an action at law, and that may well be the explanation of the court's refusal to allow the joinder in that instance. For where chancery procedure is still distinct from the law procedure as it is in Texas, any litiga tion in which relief is based upon the avoid ance of multiplicity of suits and the inade quacy of the remedy at law, can obviously be brought only on the chancery side. This point does not seem to have been raised in that case but would have been clearly suffi cient to explain and justify the decision, if the court had only considered it and made the decision merely one on the technical point of practice. In jurisdictions where the forms of procedure in law and equity have been merged, and where there is ex press statutory provision for joinder of causes of action on contract that affect every party to the proceeding, two courses seem to be open to reach the same result. The plaintiff may set up the several causes of action at law and join them in a single

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complaint relying upon the statutory pro visions. That was the course pursued and held to be proper in Pretzfelder v. Insurance Companies (supra) based on the provisions in the North Carolina Code. Or on the other hand he may elect to disregard the statutory provision for joinder and pro ceed in equity upon the theory that he has only a single right or cause of action in equity, even though it may involve the adjustment of questions between the plain tiff and different defendants on separate contracts. In the latter method the form of pleading will no doubt be legal rather than equitable, because the distinctions be tween the forms of action at law and in equity have been abolished, but the basis of the case and the relief asked for will be equitable. Equity in that sense has not been abolished by any statutory provisions and cannot be, for the distinction between legal and equitable actions is as fundamental as that between actions ex contractn and ex delicto, and no legislative fiat can wipe it out. Gould v. Cayuga Bank, 88 N Y. 83. The latter method was the one approved by the decision in Fegelson v. Niagara Fire Insurance Co. ct al., the Minnesota case cited above. The statutory provisions in that state are practically the same as those of the North Carolina Code and New York Code both as to abolishing distinctions be tween law and equity, and also as to joinder of causes of action on contract, and yet the court did not take up the statutory pro visions but took jurisdiction upon the equit able doctrines of avoidance of multiplicity of suits and because of the inadequacy of the remedy by several actions at law. It seems clear, therefore, upon well-rec ognized principles of equity, and in some states under statutory provisions also, that when several companies are liable upon a single loss under separate policies each con taining a pro rata clause, it is entirely proper practice for the assured in suing them to bring one single suit against them all. NEW YORK, N. Y., June, 1906.