There was a general motion to dismiss for want of equity in the bill, which was overruled. Since that motion is the equivalent of a general demurrer and there is equity in the bill, in my opinion, at least to the extent of the discovery sought against Dantzler Lumber Export Company, I concur *Page 557 in the result which is an affirmance of the order from which this appeal is taken.
But there is no justification in law, as I see it, for holding that in a case of this kind the alleged tort feasor's right to a jury trial of a tort action can be defeated by the fact that the right sought to be enforced by plaintiff is a subrogated right and not the original right. Our own cases so hold: See Atlantic Coast Line R. R. Co. v. Campbell, 104 Fla. 274,139 Sou. Rep. 886. Compare: Royal Indemnity Co. v. Knott,101 Fla. 1495, 1502, 136 Sou. Rep. 474.
If a tort was committed by the negligent audit of the Dantzler Lumber Export Company's books by Ernst Ernst as alleged, it gave rise to a legal right to a tort action by Dantzler Lumber Export Company against Ernst Ernst. On that tort action Ernst Ernst are constitutionally entitled to a jury trial. Their right to a trial by jury ought not to be (on principle) defeated by the fact that Columbia Casualty Company has acquired a right to subrogation under its contract of suretyship entered into with Dantzler Lumber Export Company (to which contract Ernst Ernst is not a party). As I see it, Columbia Casualty Company, as the new plaintiff by reason of subrogation, must step into the shoes of Dantzler Lumber Export Company and must submit its claim to a jury trial just as Dantzler Lumber Export Company would have had to do, had no subrogation taken place.
Can it be said that where A has a claim against B for damages by reason of tort committed by A against B that B loses his right to a jury trial because C by reason of the doctrine of subrogation as applied between A and C, has acquired A's claim against B?
My view is that under the principles stated in Atlantic Coast Line R. R. Co. v. Campbell, 104 Fla. 274, *Page 558 139 Sou. Rep. 886, Columbia Casualty Company is, as a matter of law, a subrogated plaintiff and is entitled to maintain a suit at law against Ernst Ernst as tort feasors, to the same extent that Dantzler Lumber Export Company could have done had no subrogation taken place, but that subrogation in favor of Columbia Casualty Company against Dantzler Lumber Export Company cannot operate so as to destroy the right to a jury trial which was at all times possessed by Ernst Ernst as against the subrogated claim.
I concur as to the finding of some equity in the bill, to-wit: the right to subrogation and to a discovery by the surety as to material facts relating to its suretyship. I dissent from all other portions of the opinion prepared by Mr. Justice BUFORD.
The rule that a court of equity once having assumed jurisdiction of a cause on any equitable ground will reach out and draw into its consideration and determination the entire subject matter, bringing before it all the parties interested therein, means no more than that where there is a distinct equitable controversy and a substantial ground of equitable jurisdiction, that a court of equity will render complainant full relief even to the extent of passing upon strictly legal questions and granting strictly legal remedies. It does not mean a bill in equity can bring into a court of equity as incident to the right to discovery, a separate cause of action cognizable in a court of law. Russell v. Clark, 7 Cranch (U.S.) 69, 3 L. Ed. 271; Buzard v. Houston, 119 U.S. 347, 7 Sup. Ct. Rep. 249, 30 L. Ed. 451.
In this case there is no equitable controversy between Columbia Casualty Company and Ernst Ernst; no privity of contract between them and no right of discovery from them. The equitable controversy is wholly between Columbia Casualty Company, on the one hand, and Dantzler Lumber *Page 559 Export Company, on the other. To join in Ernst Ernst for the purpose of settling an alleged action at law against them to which Columbia Casualty Company has by operation of law become subrogated, is not sustained by any authority other than the general rule above cited in the preceding paragraph, and as will be seen, the general rule does not mean that third parties not in privity to an equitable right, can be brought in as an incident to it, and thereby deprived of the right to a trial by jury. Hitchcock v. Mortgage Securities Corp., 95 Fla. 147,116 Sou. Rep. 244, cited in the majority opinion, insofar as it held to the contrary, has been by this Court expressly overruled in a recent decision of this Court. See Norris v. Eikenberry, 103 Fla. 104, 137 Sou. Rep. 128 (137 Sou. Rep. text page 134, column 1).
I therefore concur in part and dissent in part to the extent indicated.
WHITFIELD, J., concurs.