Trust Co. v. Scottish Union & National Insurance

46 S.E. 855, 119 Ga. 672, 1904 Ga. LEXIS 328

• Court: Supreme Court of Georgia
• Decided: March 4, 1904
• Status: Published

Opinion

Lamar, J.

It has been held that a bill to annul a contract for fraud and illegality, with an alternative prayer that the court would specifically enforce it if the same was found to be valid, presents two inconsistent and irreconcilable causes of action, and is fatally defective. St. Louis R. Co. v. Terre Haute R. Co., 33 Fed. , citing Shields v. Barrow, 17 How. 130. But here the policy as written was not void, and the plaintiff might have a cause of action thereunder even if unable to establish its right to a reformation and the advantages incidentally flowing therefrom. In a suit to reform, the complainant may also obtain a decree for the relief to which he is entitled under the instrument as reformed. And in like manner, under our broad and practical system of pleading, there is no reason'why the petitioner, on failure to establish his cause of action for the reformation, might not recover judgment for what he was entitled to under the policy as actually written. Compare Gunn v. Barrett, 69 Ga. 690. For “the superior courts . . on the trial of any civil case, shall give effect to all the rights of the parties, legal or equitable, or both, and apply on such trial remedies or relief, legal or equitable, or both, in favor of either party, such as the nature of the case may allow or require.” Civil Code, § 4833. But while the want of necessary parties, and the allegations in the petition, made it impossible to reform the policy, the petition did set out a cause of action on the policy as originally prepared. It averred the payment of the premium, the issuance of a policy to Hawkins with the loss payable to his creditor as its interest might appear, tbe destruction of the premises by fire, the presentation of proofs of loss, and the company’s refusal to •pay; and prayed for a money judgment on said policy. There was no ground for the objection that a splitting of the cause of action on the policy would result, as there was an allegation that the mortgage debt exceeded the amount due under the policy. The defendant in error insists that Hawkins as mortgagor was also a necessary party on this branch of the case. And while there is some conflict on the subject, yet the weight of authority is in favor of. the proposition that a mortgagee may maintain an action at law, in his own name alone, for loss on the insurance policy payable to him as his interest'may appear, when the amount of his debt exceeds the value of the insurance, and the mortgage embraced all of the property which was destroyed. Chipman v. Carroll (Kansas), 25 L. R A. 305, and note; Lowry v. Ins. Co. of North America (Miss.), 37 L. R A. 779; Maxey v. New Hampshire Fire Ins. Co. (Minn.), 55 N. W. 1130. Compare Hawkins v. Central Ry. Co., 119 Ga. 159; Loudermilk v. Loudermilk, 93 Ga. 443; Liverpool Ins. Co. v. Ellington, 94 Ga. 785; Bentley v. Standard Fire Ins. Co., 40 W. Va. 729; Traders Ins. Co. v. Mann, 118. Ga. 381; Civil Code, § 3077.

The defense of multifariousness is not favored. In this case there was no demurrer on the ground that there was a misjoinder, or that the causes of action were inconsistent, or that the petition was multifarious. The defect alleged was that the petition did not allege how or by whom the mistake was made, or in what it consisted. These grounds of demurrer were well taken and properly sustained. The petition did not set out issuable facts sufficient to warrant the reformation of an instrument, which not only ■explicitly named Hawkins as the assured, but in that shape was afterwards assigned to the present plaintiff, who took the same, not as the assured, but with a clause reciting that the loss should be payable to it as its interest might appear. Even had the allegations been sufficient to warrant a reformation of the instrument, Hawkins was a necessary party. His rights under the policy as written might have been different from those under a policy in which he was not named, and where the mortgagee was described as the assured. But in setting forth a defective cause of action for reformation of the policy the plaintiff did not lose the benefit of the good cause of action on the policy as written. Under the Civil Code, §4833, the plaintiff would not lose the good because it failed to secure the better. Where a petition is sustainable for one cause of action, it should not be dismissed as a whole because defective as to another cause of action therein set out. Lowe v. Burke, 79 Ga. 166. The plaintiff should be allowed to prosecute its case for the recovery of a money verdict; and the judgment is

Reversed.

All the Justices concur, except Simmons, G. J., absent.