The plaintiffs and appellants are ten fire insurance companies named in the petition as follows: Insurance Company of North America of Philadelphia, Allemannia Insurance Company of Pitts-burg, American Insurance Company of Boston, Firemen’s Insurance Company of Newark, New Jersey,
The statements of the petition, so far as they are necessary to the consideration of the questions presented for decision in this case, are substantially as follows: That the ten plaintiffs, together with the Phoenix Town Mutual Fire Insurance Company of St. Louis, Missouri, during the month of April, 1905, issued to one S-. J. Rosenthal their several policies to the aggregate amount of eleven thousand five hundred dollars, insuring him against loss or damage by fire to an amount not exceeding the amounts named in their several policies, upon his stock of furnishing-goods, notions, clothing, shoes, hats, caps and other merchandise, while located and contained in the brick building situated at 213? Franklin avenue in the city of St. Louis, and that on the 9th day of May, 1905', a fire occurred in said premises whereby a portion of the property was partially destroyed. On or about the 19th day of the same month Rosenthal met the representatives of each of the insurance companies at the scene of the fire, and demanded payment from each of them to the full amount of its policy. Thereupon the companies demanded of Rosenthal that he make proofs of his loss according to the terms of the policies. He promised to furnish such proofs, but after-wards neglected and refused-to do so; and about the 22d day of June, 1906', assigned the said policies by indorsement in writing as follows: The policies of the Insurance Company of the State of Illinois, the Phoenix Town Mutual, and the Royal Insurance Company
“Reduced Rate Agreement, Eighty per cent. In consideration of the reduced rate of premium charged for this policy, it is hereby mutually understood and agreed that this company shall, in case of loss or damage, be liable for such portion only of the loss or damage as the amount insured by this policy shall bear to eighty (80) per cent of the actual cash value of the property covered by this policy at the time of fire, Provided, however, that if the whole insurance shall be greater than eighty (80) per cent of the value of the property covered, this company shall not be liable for a greater portion of the loss or damage than the amount insured by this policy bears to the whole insurance covering the property at the time of fire.
*564 “This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, afid the loss or damage shall be ascertained or estimated áecording to such actual cash value, with proper deductions for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having, been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy.
“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning’ this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in the case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.
“If fire occur, the insured shall give immediate notice of any loss thereby, in writing, to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put in the best possible order, make a complete inventory of the same, stating the quality and cost of each article and the amount claimed thereon; and. within sixty days after the fire, unless such time is extended, in writing, by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the inter*565 est of the insured and of all others in the property, the cash value of each item thereof and the amount of.loss thereon; all encumbrances thereon; all insurance, whether valid or not, covering any of said property; and a copy of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; whom and for what purpose any building herein described and the several parts thereof were occupied at the time of the fire.
“The insured, as often as requested, shall exhibit to any person designated by this company all that remains of any property herein described, and submit to examinations under oath, by any person named by this company, and subscribe the same; and, as often as required, shall produce for examination all books of account, bills, invoices, and other vouchers, or certified copies thereof, if originals be lost, at such reasonable place as may be designated by this company or its representatives, and shall permit extracts and copies thereof to be made. In the event of disagreement as to the amount of the loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expense of the appraisal and umpire.
‘ ‘ This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by fire, than the amount*566 hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, and the extent of the application of the insurance under this policy or of the contribution to be made by this company in case of loss, may be provided for by agreement or condition written hereon or attached or appended hereto.
“No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court at law or equity until after - full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire. Wherever, in this policy, the word ‘insured’ occurs, it shall be held to include the legal representatives of the insured, and wherever the word ‘loss’ occurs, it shall be deemed the equivalent of ‘loss or damage.’ ”
The petition further states in substance that if the plaintiffs and the Town Mutual Insurance Company are liable upon said policies to the assignees, which they deny, they are each liable for a portion only of said loss to be ascertained according to the terms and conditions of said policies above quoted, and that in order to do justice “between'said companies,” and carry out the provisions of the contract, it is necessary that the amount of the loss, the amount of insurance maintained, the per cent that such insurance bears to the value of the property insured, the amount, if any, that the assured is liable to contribute as a co-insurer by the terms of said conditions, should all be ascertained and fixed, and the loss apportioned between each of the insurers and the insured in accordance with the terms of the policies; “that by virtue of the policies, each insurer is interested in the liability of the other and the liability of the assured as a codnsurer; that if these several matters are to be ascertained in eleven different suits at law by different juries through different trials, in one case one set of values might be fixed, in another, another set of
“That this presents a case for the ascertainment of whether any liability at all exists, and, if there shall be any, then for making apportionment of the contribution which each insurer, including the assured as a co-insurer, should bear of the common loss; that this can only be done in a court of equity, where matters of apportionment and contribution are cognizable; and that the several common law actions against .the several insurance companies should be enjoined, and the whole matter settled in one suit on the equity side of the court.”
The petition then alleges fraud and false swearing committed by Rosenthal since the fire, with reference to the amount of the loss, the disposition of the property remaining and the amount of the salvage, and the suppression and destruction of inventories, schedules and other information thereof, all of which, it is alleged, constitute fraud within the terms of the policies so that each and all become null and void by reason thereof.
That the petitioners are informed and believe that the defendants Fauntleroy and Barclay have already claimed some interest under the assignment of the policies. The prayer for relief is for injunction to prevent the prosecution of the suits pending in Audrain and Lincoln counties; that if any of the petitioners shall be held liable in any amount on the policies that the liability be decreed to be one calling for contribution and apportionment on the part of
To the petition the defendants filed their general and special demurrer on the grounds:—
“(1) That the petition does not state facts sufficient to constitute a cause of action.
“(2). That several causes of action have been improperly united.
“ (3) That the court has no jurisdiction over the person of any of said defendants.
“(4) That said court has no jurisdiction over the subject of this action.
(5) That there is a defect of parties plaintiff, inasmuch as the Phoenix Town Mutual (Insurance Company) of St. Louis, is not a party plaintiff, or defendant.’’
This demurrer was sustained by the court, and the plaintiffs declining to plead further, it gave final judgment for the defendants. Thereupon the plaintiffs in.due time filed their motion in arrest of judgment, which was overruled by the court, and the cause was regularly appealed to this court.
Exceptions were saved by plaintiffs to the orders of the court sustaining the demurrer and overruling the motion in arrest of judgment, by bill of exceptions filed in due time. The question presented in this court
Each of the ten plaintiff insurance companies and the Town Mutual has a separate policy of insurance upon the same property issued to Rosenthal, the owner. Each policy contains a provision that the insurer shall not be liable under it for a greater proportion of any loss than the amount insured by it bears to the whole amount of insurance on the property, whether valid or not. The property having been injured or destroyed by fire, the assignees of all these policies severally brought separate actions of law on each of the policies, in the circuit courts of Lincoln and Audrain counties. The ten plaintiffs (The Town Mutual Company and its policy being omitted) thereupon brought this suit to enjoin the actions at law, to have the policies cancelled on account of frauds alleged to have been committed by Rosenthal after the fire, and which by the terms of each policy rendered it null and void, to ascertain whether any liability exists with respect to said policies, and if there should be. any, to mate a common apportionment and to determine the contribution which each insurer should mate toward the common loss; and to decree that the plaintiffs should not be entitled to recover anything for the reasons set forth and particularly for the reason that Rosenthal did not furnish the insurers with proofs of loss. A demurrer having been sustained to the petition the question is directly presented whether there is anything in the facts of this case to require or authorize the circuit court, in the exercise of its equitable jurisdiction, to forbid the trial of these actions at law by a jury, according to the course of the common law, and to compel the defendants to submit themselves to a trial by the judges, according to the practice of courts of equity. The case is an important one, because, if we may be permitted to adopt the language of the United States Circuit Court of Ap
. Í. It is not claimed that the fraud charged in the petition would not constitute a full and complete legal defense to the actions upon the several policies; in fact, the petition states that it has rendered tho policies null and void. • One of the grounds upon which equitable interposition is asked is that suits have already been brought in the courts of this State on them all. These courts have already acquired jurisdiction of every question involved in these cases, and it is sought, by this proceeding, to enjoin them from exercising it. There is no longer any excuse for fear on the part of these plaintiffs or any of them, that prosecution will be withheld until the defense will be em
Home Insurance Company v. Stanchfield,
“(1) The company has a full, plain, and perfect defense to the policy at law, and no reason is shown why a resort to equity is either necessary, expedient, or proper. (2) Action at law on the policy must (as we have seen) be brought in a short, limited time after the loss. In' the present case only about seven months remain to the assured, and the bill alleges that he was about to bring suit; the purpose of the present bill is, therefore, manifest, viz,: to force the assured to litigate in equity instead of at law, thereby depriving the party of the right to a trial by jury.” Mr. Justice Miller, concurring, observed: “I am entirely satisfied with the opinion prepared by the circuit judge, both with the result and the course of argument by which that result is attained. I think the turning points of the case are, that the loss had occurred before the bill was filed, and that by reason of the limitation in the policy as to the time of bringing suit, and the allegation that the defendants were threatening to sue at law, there is no danger of indefinite delay, nor is there any other circumstances alleged warranting resort to equity. ’ ’
There is no reason why the same rule should not be applied to policies of fire insurance as to life insurance, and this point has become too well settled to
II. Assuming, then, that the fraud and false state.ments charged in the petition constitute no ground for equitable interference with the actions at law now pending upon the policies, it becomes necessary to consider whether the jurisdiction may be invoked in this case for the purpose of preventing a multiplicity of suits, or of adjusting differences between the plaintiffs themselves. We will, for the purposes of this decision, ignore the fact that -under the allegations of the petition, if such differences exist, the Phoenix Town Mutual Company is equally interested with the plaintiffs, and such an adjustment in this ease would be impossible without its presence either as a plaintiff or defendant, its absence being unexplained. For anything that appears, the situation, after such an adjustment as is asked by the plaintiffs, would be the same in kind if not in degree as that which exists now. After the liability of the ten plaintiffs had been ascertained by the court, the Town Mutual would still be at the mercy of a jury and might secure a verdict so small that plaintiffs would be humiliated by its success or might suffer a verdict so large that it would wish that it had cast its lot with its associates.
It is plain that the plaintiffs have no common interest in these contracts. They were made at different times, without consultation between the companies, and without the intention that any right or liability should exist between themselves. It is true that in
The claim that the plaintiffs are entitled to a trial in equity to prevent a multiplicity of suits is also without merit. There is no ground stated for fear that any one of them will be sued more than once, and it is this one suit against each of them on its contract of
“But it is also urged that complainants have a right to file this bill in equity in order to save a multiplicity of suits. The phrase ‘multiplicity of suits,’ in connection with the jurisdiction of courts of equity, has often been carelessly used, but, it seems, never more so than in this proceeding. Each of these complainants were sued by the Distilling Company at law. In order to save the Distilling Company from prosecuting nineteen different suits at law, complainants urge that they may bring .this action in equity. There are two reasons why the rule in regard to saving a multiplicity of suits as applied to matters of equity jurisdiction may not be invoked in this proceeding.
“First. There can be no claim that any complainant is saved from a multiplicity of suits by the maintenance of this action in equity. The Distilling Company is not in court asking it to take jurisdiction of its suits against the insurance companies in order to save it, the Distilling Company, from a multiplicity of suits against it or by it. It does not rest with the complainants to urge as a foundation for their suit that the defendant, the Distilling Company, may thereby be saved a multiplicity of suits. [Equitable Life Assurance Society v. Brown,213 U. S. 25 .]
“Second. The complainants, in our opinion, present no cause of action, either legal or equitable, against the Distilling Company by the allegations of*575 their bill. The prevention of a multiplicity of suits is not, considered by itself alone, an independent source of jurisdiction in equity, in such a sense that it can create a cause of action where none had ever existed. ’ ’
Upon another point which has been suggested by the plaintiffs in this suit the same court in the same opinion says: “If the peculiar and special duty of juries to pass upon property values in matters at law may be taken away and given to a chancellor, merely because different juries may render different verdicts upon like or similar facts, then trial by jury in civil actions no longer exists.”
That case has been cited and approved, with an interesting citation of authorities, in Scruggs v. American Cent. Ins. Co.,
For the reasons stated the judgment of the circuit court is affirmed.
The foregoing opinion of Brown, C., is adopted as the opinion of the court.