Opinion
14398.
FEBRUARY 9, 1943. REHEARING DENIED MARCH 11, 1943.
Equitable petition. Before Judge Pomeroy. Fulton superior court. October 20, 1942.
Alexander E. Wilson Jr., for plaintiffs in error.
Gambrell White and James S. Wilson Jr., contra.
A petition by the receiver of a mutual insurance company against two defendants residing in different counties, seeking to collect different amounts alleged to be due by virtue of an assessment levied in another State against all members of the company, the defendants being alleged to be such members, there being no allegation of fraud or conspiracy among the defendants, or any common interest other than that defendants had been policyholders, and, as such, members of the mutual insurance company, the petition containing allegations to the effect that the court of the domicil of the insolvent mutual insurance corporation, having acquired jurisdiction thereof, and having, according to the applicable statutes of its home State, determined the necessity for, and by decree fixed, the amount of the assessment against the members of such corporation in accordance with the laws of the State of its domicil, was subject to demurrer on the ground that it contained a misjoinder of parties and causes of action.
No. 14398. FEBRUARY 9, 1943. REHEARING DENIED MARCH 11, 1943.
This suit was brought in Fulton superior court by Roy D. Keehn, as receiver of Central Mutual Insurance Company of Chicago, hereinafter referred of as the company, jointly against Hugh H. Lyle, a resident of Fulton County, and Alexander E. Wilson Jr., a resident of DeKalb County, seeking to collect from them assessments levied in Illinois against all members of the company, an insolvent insurance corporation, the defendants in this case being alleged to be such members. The allegations of the petition as amended were substantially as follows: The company was incorporated under the laws of the State of Illinois, and was qualified to conduct its business in Georgia. On March 25, 1935, the company executed and delivered to defendant Lyle a policy insuring him against loss from liability arising out of the operation of a described automobile, from March 25, 1935, to January 19, 1936. On August 22, 1935, the company likewise delivered to defendant Wilson a policy insuring him against loss from fire or theft of a described automobile from August 22, 1935, to August 22, 1936.
It was alleged in paragraph five of the petition that each policy was in consideration of a cash premium, and subject to the conditions therein provided, including the contingent liability of the assured of one time the premium. The cash premium named in each policy was fully paid, and each policy was in force throughout the term stated. Excerpts from the by-laws of the company, together with quotations from laws of the State of Illinois in reference to mutual insurance companies, were set out in the petition.
The policy issued to each of the defendants contained the clause: "The contingent liability of the assured hereunder is limited to one time the premium named herein, and no more. The assured is given and hereby accepts notice that by virtue of this policy he is a member of the Central Mutual Insurance Company of Chicago. and that the annual meetings of the company are held at its home office at Chicago, Illinois, the first Tuesday following the second Monday of February in each year."
In paragraph nine of the petition it was alleged: "Each of the defendants by accepting the policy so issued to him became and continued to be throughout the term thereof a member of [the company], and assumed all the obligations and liabilities of members." On January 8, 1937, a proceeding for the liquidation of the company was instituted in the circuit court of Cook County, Illinois, by the petition of the attorney-general upon the request of the director of insurance, pursuant to the laws of that State. The company appeared, and has been continuously represented by counsel. On January 11, 1937, an order was entered, declaring that the company was insolvent, and that sufficient cause existed for the appointment of a receiver. On the same date the director of insurance of Illinois appointed Henry G. Miller receiver of the company.
On May 10, 1938, Miller as receiver filed a petition for assessment against the holders of all policies issued by the company during the period from January 31, 1935, to January 11, 1937. On March 19, 1940, the circuit court by its order approved the report, which showed that the company had sufficient liabilities remaining unsatisfied, that were incurred between January 31, 1935, and January 11, 1937, to warrant an assessment of 100 per cent. of the cash premiums paid, against all persons who were holders of policies at any time during such period, applying the proposed assessment against each policyholder, including defendants, only to the liabilities which were incurred during the term of his particular policy. The order declared that the material allegations of the petition for assessment were true, and directed that an assessment be levied by the receiver against all individuals who, at any time during such period, were holders of a policy. The assessment, a copy of which is attached to the petition as an exhibit, was levied by the receiver on March 19, 1940. Thereafter the receiver computed the amount due upon each policy, which was confirmed by a separate order of the circuit court.
In paragraph fourteen of the petition it was alleged that by virtue of the foregoing there was levied and assessed against each defendant in this case, and lawfully owing by them to the company under their policies, an amount equal to each annual cash premium. On July 20, 1940, the receiver caused written notice to be given to, and demand made of, defendant Wilson for the payment of the amount so assessed against him. On February 8, 1941, similar notice and demand was made on defendant Lyle; but the defendants have refused to pay the same.
The order of the circuit court directing the levy of the assessment is final, having been affirmed by the Illinois Appellate Court. People v. Central Mutual Insurance Co., 313 Ill. App.? 84 (39 N.E.2d 400).
Miller resigned, and petitioner was appointed receiver on May 26, 1941. An order approving his bond was duly entered. He is now vested by operation of law with the title to all the property of the company, including the claims sued on in this action.
In paragraph eighteen it was alleged: Except as to the amount claimed against each of the defendants, the claims asserted herein are identical in character, each case involving the liability of a policyholder of the company to a pro rata assessment made by the same court in the same proceedings and for the same purpose, to wit, the creation of a fund out of which the claims of creditors of the same insolvent corporation may be paid. The amounts sought to be recovered are the debts of defendants as members of the company, a corporation, owing to petitioner as receiver and successor in title and interest of such corporation, and are sought to be recovered for the payment of the debts of the corporation. The amounts so sought to be recovered are less than the total amount of such debts of the corporation. It was alleged also, that this action presents a common right to be established by the plaintiff against the several defendants, and that it is proper for the court to determine the whole matter in one action, thereby avoiding a multiplicity of suits and granting speedy and effectual relief.
In paragraph nineteen it was alleged that there is now due and owing from each of the defendants to petitioner, stated amounts equal to 100 per cent. of the cash premiums expressed in the respective policies, with interest.
The receiver prayed (a) that the trial court, either as a court of equity or under the Code, § 22-1001, relating to suits against the members of corporations, take jurisdiction of the matter, determine the common questions of law and fact involved herein and the several liabilities of each defendant, and render its decree accordingly; (b) that judgments be granted against each of the defendants for the amounts stated in the petition, with interest and costs of court; (c) that process issue; (d) that a second original issue, directed to the sheriff of DeKalb County, for service of defendant Wilson.
The defendants interposed separate demurrers and a joint answer. Each demurrer attacked the petition on the ground it contains a misjoinder of parties and causes of action. The demurrer by Wilson, before otherwise pleading, alleged that as to him the superior court of Fulton County was without jurisdiction.
By consent the case was tried by the judge without a jury. The exception is to an order overruling the demurrers, and entering judgment against the defendants as prayed.
Distinct and separate claims of or against different persons may not be joined in the same action. Code, § 3-110; Gordy v. Levison, 157 Ga. 670 (2) ( 122 S.E. 234), and cit. But where there is one common right to be established by or against several, equity will determine the matter as to all parties in one action. Code, § 37-1007; Robertson v. Cox, 183 Ga. 744 ( 189 S.E. 844), and cit.
It is insisted in the brief for the defendant in error, that the Code section last above mentioned justified the joinder under the court's equitable jurisdiction; that there was one common right to be established by the plaintiff against both defendants; that the alleged common right was based upon the assessment made by the receiver pursuant to the direction and authorization of the Illinois court; that while the defendants were alleged to be liable in different amounts and upon the basis of separate and distinct policies, the provisions in the policies which were relied upon were identical; that the alleged common right did not stem from the separate policies, but from the single assessment; that the questions of law and fact involved were substantially identical as to each defendant, and by taking jurisdiction of the entire matter the court acted not only to avoid a multiplicity of suits, but also to avoid the unnecessary costs and expenses that would have been incident to separate actions; that the basic question was the same as to both defendants, namely, whether the defendants were liable to pay the assessment levied against them by the receiver in the Illinois proceeding.
In support of this insistence, counsel rely on Beatty v. Lincoln Bus Co., 11 N. J. Misc. 938 (169 A. 286), where a receiver of a mutual insurance company of New Jersey sued a number of defendants to collect the amounts of unpaid assessment levied under the direction of a New Jersey court of chancery. The court said: "It is conceded, and is clear, that at common law a separate action against each defendant would be necessary." But that the New Jersey statute, though based on the late English practice ordinances, seems even more liberal than they. The New Jersey statute provided: "The plaintiff may join separate causes of action against several defendants, if the causes of action have a common question of law or fact and arose out of the same transaction or series of transactions." Italics ours. The court, in holding the joinder of the defendants proper, said: "It is plain that, except as to the amount, the claims against the three defendants are identical in character; namely, the liability to assessment pro rata to meet claims against the company. There is, therefore, a joint question of law, and I think of fact also. Of course, any defendant may have a defense that is personal to himself, as, for example, infancy, or duress, or fraud in procurement, and so on. But these are defenses; the various causes of action are on the face of the complaint substantially identical [except?] as to amounts claimed."
Counsel for the receiver rely also on McCall v. Bowen, 91 Neb. 241 ( 135 N.W. 1014, 40 L.R.A. (N.S.) 781), where it was held: "An action by the receiver of a mutual insurance company, organized under chapter 46, Laws 1899, against the members, to recover an assessment made by the court in order to pay the liabilities of the insolvent corporation, may properly be brought in a court of equity in the same manner as an action by the receiver of a stock corporation against its stockholders for like purpose; and in such case summons may be issued out of the county in which the action is brought to any other county in the state in which a defendant resides or may be summoned." A note in L.R.A. 782, says: "It is to be noted that McCall v. Bowen bases the jurisdiction of equity to enforce the liability of members of a mutual insurance company upon the rule obtaining in that State, that equity has jurisdiction of an action by a receiver against all the stockholders of a corporation jointly, to enforce their contract or statutory liability. Some of the cases asserting this rule are referred to in the note to 28 L.R.A. (N.S.) 743. As shown in that note, there is a diversity of opinion among the courts on that question, but the weight of authority is against the doctrine of the Nebraska cases; at least, where the right to invoke equity jurisdiction rests entirely upon the claim that a multiplicity of suits is thereby saved; but, as pointed out in that note, equity has jurisdiction where the proceeding is in the nature of a creditors' bill, and the relief sought is the ascertainment of the amount required to be contributed by the stockholders in order to liquidate the debts of the corporation, and the payment of such amount, and distribution thereof among the creditors."
In cases involving fraudulent transfers of property this court has held: "There is no misjoinder of parties or of causes of action, even if the petition concerns things of a different nature against several defendants whose rights are distinct, if it sets forth one connected interest among them all, centering in the point in issue in the case. Conley v. Buck, 100 Ga. 187 ( 28 S.E. 97)." Hermann v. Mobley, 172 Ga. 380 (3) ( 158 S.E. 38); Goodroe v. C. L. C. Thomas Warehouse, 185 Ga. 399 (2) ( 195 S.E. 199); Grant v. Hart, 192 Ga. 153 (4) ( 14 S.E.2d 860). In Kimzey v. Mickel, 191 Ga. 158 ( 12 S.E.2d 567), a suit against twenty-two residents of a county, seeking to enjoin defendants from allowing their live stock to run at large, the petition was held not subject to demurrer on the ground that it contained a misjoinder of parties defendant.
Sanders v. Wilson, 193 Ga. 393 ( 18 S.E.2d 765), involved consolidation of two suits arising out of a collision between an automobile and a truck. It was held: "The general test, in determining whether cases can be consolidated or whether an equity suit will lie to enjoin an action at law and try its issues in the equity suit, is whether the two suits could have been joined originally; and this depends on whether a misjoinder or multifariousness would result. There was lacking the essential community of interest between the parties plaintiff, as well as the required identity with respect to any controlling issue as made by the defenses, in the two cases sought in effect to be consolidated. Consequently the exceptions taken to the order enjoining the law action and combining its issues with those made in the equity case must be sustained."
In the instant case the suit was brought against two defendants, seeking to collect different amounts alleged to be due by virtue of an assessment on separate policies, each of which had expired about two years before the assessment was made, and each policy had been in existence for a different period of time. Thus the only basis for seeking the aid of equity was in order to avoid a multiplicity of suits.
In 30 C. J. S. 368, § 42, it is said: "Suits do not become of equitable cognizance merely because of their number. Multiplicity of suits does not mean multitude of suits. The number of actions which constitute a multiplicity of suits so as to justify or require the assumption of jurisdiction in equity is not fixed, but depends on the circumstances of each case." See 19 Am. Jur. 91, § 78; 14 R. C. L. 348, § 50.
The Code, § 37-1007, declares: "Where there is one common right to be established by or against several, and one is asserting the right against many, or many against one, equity will determine the whole matter in one action." It will be perceived that this section authorizes equity to take jurisdiction where there is "one common right to be established" against several [italics ours]; whereas the New Jersey statute allows the plaintiff to join "separate causes of action" if they "have a common question of law or fact, and arose out of the same transaction or series of transactions." As pointed out in White v. North Georgia Electric Co., 128 Ga. 539 ( 58 S.E. 33), the provisions of the Code, § 3-110, prohibiting a plaintiff from joining in one action distinct and separate claims, are entirely in harmony with § 37-1007, permitting equity to take jurisdiction where there is one common right. The section allowing actions to be joined in order to avoid a multiplicity of suits is primarily for the convenience of parties to the case; and according to a number of authorities, whether it will be allowed is a question largely to be determined by the circumstances in the case. 30 C. J. S. 328, 365 et seq., § 10, 42; 19 Am. Jur. 90, § 77. The Code, § 37-1007, assumes however that the petition in other respects discloses a case for proper application of the power. It is one thing to possess power to grant equity jurisdiction, and another to have a case where it is proper to exercise such power.
In Persons v. Dallas, 178 Ga. 778 (3), 783 ( 174 S.E. 699), it was said: "While the petition is filed by the administrator of an estate, and all parts of the petition are confined to the one purpose of recovering the property and collection of debts due the estate, there is no allegation of conspiracy among the defendants, nor any other allegation affording any nexus whatever between them. There is no common interest between the defendants with respect to the suit. Each defendant is interested merely in defeating the purpose of petitioner to recover a judgment against him or her."
In the case under consideration, questions of common interest to members of the company, relating to the necessity of an assessment, the appointment of a receiver, what per cent. each member would be assessed, etc., were settled by the proceeding in Illinois. People v. Central Mutual Insurance Co., 313 Ill. App. 84 ( 39 N.E.2d 400). See also Pink v. A. A. A. Highway Express, 191 Ga. 502 (2), 508 ( 13 S.E.2d 337, 137 A.L.R. 934 and cit.). Therefore there is no common right to be established which forms the basis of equity jurisdiction to avoid a multiplicity of suits, the common right already having been established in the previous litigation. It also appears that there is no allegation of conspiracy among the defendants; and, as stated in Persons v. Dallas, supra, each defendant is interested merely in defeating the purpose of petitioner to recover a judgment against him. Neither the provision in the policy, nor the judgment of the Illinois court, can be construed as creating a joint liability on the part of the policyholders. Each policyholder, if liable, has a separate and distinct liability, the amount of which has been specifically determined, and the enforcement of such liability is the proper subject of a suit at law brought separately against each policyholder. The petition was subject to demurrer based on the ground of misjoinder of parties and causes of action. The court erred in overruling the demurrers, and in entering judgment in favor of the plaintiff.
The Code, § 22-1001, also relied upon by the plaintiff, in reference to suits against the members of a private association, or the stockholders of corporations, "to recover a debt due by the association or corporation," does not apply to the facts of the instant case. See Greer v. Jackson, 146 Ga. 376, 380 ( 91 S.E. 417).
It is unnecessary to pass upon the question as to whether a suit against only two defendants would be sufficient, under the language of the Code, § 37-1007.
Judgment reversed. All the Justices concur, except Bell, P. J., who dissents.