Redmon v. Netherlands Fire Insurance, 184 N.C. 481 (1922)

Dec. 13, 1922 · Supreme Court of North Carolina

184 N.C. 481

J. J. REDMON et al. v. NETHERLANDS FIRE INSURANCE COMPANY.

(Filed 13 December, 1922.)

1. Actions — Causes—Parties—Misjoinder—Pleadings—Demurrer.

Tbe owner of certain lumber was indebted to two of the plaintiffs in a certain sum, and executed a deed in trust thereon to secure its payment, the trustee to dispose of the lumber for the payment of the debt and reconvey the balance thereof to the owner. The defendant insured the parties plaintiff, creditors of the owner, against loss by fire, payable to the trustee, and thereafter issued another policy, on the same lumber, payable to the creditors, and the person named in the deed of trust, as their interest may appear. The owner had assigned his interest in the second policy to a bank to secure a loan it had made to him, and a part of the lumber covered by the policies was destroyed by fire: Held, the owner, his creditors, and trustee in the deed of trust, and the bank were all variously interested, and properly united as parties plaintiffs in an action on the policy, and that the loss by fire was the common cause thereof; and that a demurrer for misjoinder of parties and causes of action was properly overruled, especially is this proper when it has been made to appear that the creditors secured by the deed of trust had acquired the interest of the owner and of the bank.

2. Same — Amendments—Statutes.

Upon the .facts in this ease, it is held, on appeal, that the trial court properly allowed the plaintiffs to amend their complaint to allege that some of the plaintiffs had acquired the interests of the others in a policy of insurance against loss by fire, in furtherance of justice, under the provisions of O. S., 547.

Appeal by defendants from Shaiu, J., at chambers, 21 April, 1922, from MadisoN.

Tbe defendant demurred upon tbe ground tbat there was a misjoinder of both parties and causes of action.

Joe M. Burlinson owed tbe plaintiffs, J. J. Redmon and W. H. Redmon, trading and doing business as J. J. Redmon & Son, and as individuals, tbe sum of $20,000. Later Burlinson secured tbis debt by conveying to J. C. Redmon as trustee 1,250,000 feet of lumber, as set out in tbe complaint, said lumber to be disposed of by said trustee and sufficient of tbe proceeds realized therefrom to be paid by tbe trustee to said J. J. Redmon and W. H. Redmon to satisfy said debt of Burlinson, and tbe balance of said proceeds and any lumber unsold (after deducting certain necessary expense items) to be paid over and reconveved by tbe trustee to said Burlinson.

On 27 July, 1921, tbe defendant insured J. J. Redmon & Son against tbe loss or destruction of said lumber by fire, issuing to tbem, as insured, a $20,000 fire insurance policy, payable to J. C. Redmon, trustee.

On 2 August, 1921, tbe defendant issued an additional policy insuring W. II. Redmon and J. J. Redmon against tbe loss or destruction of said lumber by fire issuing to tbem, as insured, a $5,000 fire insurance policy, payable to Joe M. Burlinson and J. C. Redmon, as tbeir interest in said lumber might appear.

Prior to tbe issuance of either of said policies, Joe M. Burlinson was also indebted to tbe Bank of Yancey in tbe sum of $1,700, and after tbe issuance of tbe said $5,000 policy, assigned bis interest in tbe same to said bank as collateral security for bis said debt to tbem of $1,700. After issuance of said policies, and while both of same were in full force, 900,000 feet of-said lumber was destroyed by one fire, and was valued, as plaintiffs allege in tbis complaint, at tbe sum of $27,000, and tbe plaintiffs further allege that defendant, by tbe terms of said insurance policies, became indebted to plaintiffs according to tbeir respective rights and interests in said destroyed lumber to tbe extent of tbe face value of said policies, to wit, in tbe sum of $25,000.

Tbe plaintiffs were permitted to amend tbeir complaint to set out that tbe interests of tbe Bank of Yancey and of Joe M. Burlinson in tbe $5,000 policy bad been acquired by J. J. and W. H. Redmon, and tbe demurrer was overruled. Defendant appealed.

George M. Pritchard and Guy v. Roberts for plaintiffs.

, T. A. Hammond and Jones, Williams & Jones for defendant.

Glakk, O. J.

Tbe single exception is to tbe judgment permitting plaintiffs to amend and overruling tbe demurrer.

It was manifestly in furtherance of justice to permit plaintiffs to amend so as to show that plaintiffs, J. J. Redmon and W. H. Redmon, trading and doing business under tbe firm name of J. J. Redmon & Son, bad acquired tbe interest of plaintiffs, Bank of Yancey and Joe M. Burlinson, in tbe said $5,000 policy. Tbis amendment eliminated all question as to misjoinder either of parties or actions, since from tbe very nature of tbe case J. C. Eedmon, trustee, and W. H. and J. J. Eedmon bave tbe sole interest in tbe result of tbe action as to botb of said policies.

Tbe court, at any time ’before or after final judgment, can permit an amendment in furtherance of justice. C. S., 547. But irrespective of said amendment, there has been neither a misjoinder of parties or causes of action.

Tbe Code of Civil Procedure provides that those united in interest must be joined as plaintiffs. It also provides that causes of action may be joined when they arise out of tbe same transaction, or transactions connected'with tbe same subject of action. Plaintiffs are all parties united in interest, and tbe causes of action arise out of tbe same transaction, and a transaction connected with tbe subject of tbe action. Quarry Co. v. Construction Co., 151 N. C., 349.

In Pretzfelder v. Ins. Co., 116 N. C., 495, tbe plaintiff’s stock of merchandise was insured in several different fire insurance companies, each of which companies, under tbe terms of tbe respective policies, was to pay its proportionate share of any loss occasioned by fire. Subsequently tbe goods were damaged by fire and tbe plaintiffs brought a single action on all of said policies, joining all of said fire insurance companies as defendants. Tbe Court held that “there was not only no misjoinder of parties, but that tbe joinder was essentially proper.”

In tbe Pretzf elder case, supra, tbe Court said that if separate suits bad been brought, then tbe same propositions of law and tbe same evidence would bave been to go over in five different actions, and at an expense of five times tbe court costs, and a needless waste of tbe Court’s time, and with tbe prospect of five different juries assessing tbe loss at five different amounts.

The same and stronger reasons exist for joinder of parties and causes of action in tbis case. Botb policies are issued by tbe same company, and to J. J. Eedmon and W. H. Eedmon. Tbe same fire-occasioned tbe loss under each policy. Tbe same lumber is insured under each policy. Joe M. Burlinson, as debtor of J. J. Eedmon and W. H. Eedmon, to the extent of $20,000, and as owner of tbe excess of said lumber above .the amount necessary to discharge said indebtedness, and not destroyed by fire, was interested, in tbe result of’ each of said causes of action, tbe amount of lumber left to him after tbe extinguishment of bis said debts depends upon tbe amount of money recovered in said causes of action. Joe M. Burlinson was also united in interest with other plaintiffs as payee under said $5,000 policy. J. C. Redmon, as trustee, was interested in the recovery under both, causes of action, in the $20,000 policy by express designation as the payee, and in the second or $5,000 policy according to his rights, and his only rights being that of trustee to sell said lumber and pay off said $20,000 debt. The Bank of Yancey was interested in the result of each of said causes of action in that it was entitled to hold the interest of Joe M. Burlinson in the $5,000 policy to secure its said debt of $1,700.

The above would be valid reasons for the joinder had not J. J. Red-mon and ~W. H. Redmon, trading and doing business under the firm name of J. J. Redmon & Son, acquired the interest of the Bank of Yancey and of Joe M. Burlinson in said $5,000 policy, but with said interests so acquired there can be no misjoinder of parties nor of causes of action.

Affirmed.