54 S.E. 287 | N.C. | 1906
Lead Opinion
The plaintiff alleges that she, a widow with little education and scant means, had been induced to take out fifteen policies on the lives of herself, her children and grandchildren, by means of certain false and fraudulent representations made to her by the defendant’s agents that they were ten year tontine policies; that after paying, faithfully, her weekly assessments for ten years out of her scanty earnings, when she demanded performance it was refused, and she discovered that the policies did not mean what the defendant’s agents had represented to her, and she brings this action to recover the damages she has sustained.
“All the causes of actions arose out of transactions connected with the same subject of action,” Revisal, sec. 469, and hence were properly joined. Solomon v. Bates, 118 N. C., at p. 316. There, the same “subject of action” was the plaintiff’s loss of his deposits. Here, it is the plaintiff’s loss of her premiums, procured from her by a series of false representations, of the same purport and for the same end, made from time to time by the defendant’s agents. The same process of reasoning which would divide this action into fifteen actions, one upon each policy, would further subdivide each of those into an action on each monthly payment on each policy.
The same matter has been recently discussed and the authorities reviewed. Fisher v. Trust Co., 138 N. C., 224. Even if the false- representations as to each policy constituted a separate cause of action, and were not part of the same connected series of dealings, on page 239 of that case it is said, quoting from Judge Asile in King v. Farmer, 88 N. C., 22: “Where the different eauses of action are of the same
The order sustaining the demurrer must be
Reversed.
Concurrence Opinion
concurring in result: The transactions between the plaintiff and the defendant were separate and distinct from each other. There was not one and the same transaction or a series of transactions connected with the same subject of action. The case does not, therefore, fall within the provision of the first subdivision of section 469 of the Revisal, unless we are prepared to hold that all transactions between the same parties of whatever kind or description may be so classified, simply because the plaintiff may in the end have one judgment upon all his separate causes of action. If this be so, there was no use in adding the other six subdivisions. The forceful argument of Mr. Whitlock made it clear to me that subdivision 1 has no bearing upon the question. In this case, the causes of action are all of the same general description, and there is no reason why subdivision 1 should apply.
But my opinion is that the joinder of the several causes of action can be sustained under subdivision 3 of the same section, which authorizes the uniting of causes of action sounding in tort without regard to their number or to their nature, and, too, without regard .to whether they arose out of the same transaction or transactions connected with the same subject of action. I do not think the case bears any resemblance to Fisher v. Trust Co., 138 N. C., 244. In Solomon v. Bates, 118 N. C., 311, the several deposits made by the plaintiff, by the course of dealing with the bank, were of course finally merged into one, for the recovery of which, in solido, the suit
Lead Opinion
The plaintiff alleges that she, a widow with little education and scant means, had been induced to take out fifteen policies on the lives of herself, her children, and grandchildren, by means of certain false and fraudulent representations made to her by the defendant's agents that they were ten-year tontine policies; that after paying, faithfully, her weekly assessments for ten years out of her scanty earnings, when she demanded performance it was refused, and she discovered that the policies did not mean what the defendant's agents had represented to her, and she brings this action to recover the damages she has sustained.
The defendant demurred on the ground of misjoinder of causes (368) of action. The demurrer should have been overruled. There are the same parties and one series of transactions, forming one course of dealing, and though the policies may have been taken out at different times and through different agents, the complaint (whose allegations must be taken as true on a demurrer) set out one connected story. The same false representations, in behalf of the same defendant, are alleged as to all the policies. To divide up such an alleged wrong as the plaintiff avers was committed on her by the defendant, into fifteen separate actions, would needlessly consume the time of the courts in "threshing over the same straw" and would be a great imposition upon the plaintiff. The whole matter can be better disposed of in one action. If fifteen separate actions had been brought, they should have been consolidated and one trial had.
"All the causes of action arose out of transactions connected with the same subject of action," Revisal, sec. 469, and hence were properly joined.Solomon v. Bates, 118 N.C. at p. 316. There, the same "subject of action" was the plaintiff's loss of his deposits. Here, it is the plaintiff's loss of her premiums, procured from her by a series of false representations, of the same purport and for the same end, made from time to time by the defendant's agents. The same process of reasoning which would divide this action into fifteen actions, one upon each policy, would further subdivide each of those into an action on each monthly payment on each policy.
The same matter has been recently discussed and the authorities reviewed. Fisher v. Trust Co.,
The order sustaining the demurrer must be
Reversed.