21 S.E. 302 | N.C. | 1895
The plaintiff was insured in several companies the *263
contract with each containing the provision that the plaintiff's right of recovery against each was limited to the proportion of the loss which the amount named in the policy of each company should (496) bear to the whole amount insured. It is not only no misjoinder, but essentially proper that all the companies should be made parties defendant. If each company should be sued separately, not only would the same proposition of law arise and the same evidence be gone over in five different actions at an expense of five times the amount of court costs, and much needless consumption of the time of the courts, but as the trial would be before five different juries the loss might be assessed at five different amounts. There is no method to gauge accurately the pro rata loss of each company so readily as by one verdict and one apportionment, according to the varying amount of risk taken by each company. By their stipulation to apportion the loss the companies have, to that extent at least, made the five policies one contract, the amount of damages accruing upon which should be assessed and apportioned in one joint action. Adams' Eq., 200; 1 Pomeroy Eq. Jur., section 245, 274; Black v. Shreeve, 3 Hals, ch. 440, 456. The verdict necessarily "affects all parties to the action." The joinder is therefore within the purview of The Code, sec. 267. Hamlinv. Tucker,
The arbitrators were appointed but disagreed and refused to go on, and finally broke up without making an award. Subsequent attempts to agree upon another board failed. The parties were thus relegated to their legal rights, and the action can be (497) maintained. Brady v. Ins. Co.,
No error.
Cited: Blackburn v. Ins. Co., post, 824; Cook v. Smith,