June 11, 1942. The Opinion of the Court was delivered by I am sorry that I do not agree with the conclusion reached by Mr. Acting Associate Justice Stoll in this appeal. The result of it is that the respondents are given two bites at the cherry when I think that in contemplation of law they are entitled to but one.
I so think for two reasons. In the first place I think that the defense of res adjudicata, relied upon by appellant, is effective. Long the leading case upon the subject is Johnston-Crews Co. v. Folk, 118 S.C. 470,111 S.E., 15, 21, in which the exhaustive opinion of the Court was delivered by the very able Justice Cothran. In that case, after an unsuccessful attempt to set a deed aside for fraud, the plaintiff was permitted to maintain an action based upon the invalidity of the deed so far as subsequent creditors were concerned for failure to record it within time. Thus the facts necessary to establish the separate causes of action were different. The following was cited with approval by the Court:
"`A test of the identity of the cause of action is, Would the evidence adequate to recovery in the second have been sufficient to support the first?' Sarson v. Maccia,90 N.J. Eq., 433, 108 A., 109."
A short time after the decision of the Johnston-Crews Co.case, the Court decided C.M. Davis Son Co. v. Stukes,122 S.C. 539, 115 S.E., 814, in which Mr. Justice Cothran again wrote the opinion, cited Johnston-Crews Co. v. Folk and held that the doctrine of res adjudicata was applicable. In that case the plaintiff had pursued to adverse judgment an action in claim and delivery and thereafter commenced the action then on appeal for damages for conversion, based upon the same facts. *Page 311
In the second place, I think that the respondents elected their remedy when they brought suit on the policy alleging that they were the beneficiaries; see the holding in C.M. Davis Son Co. V. Stukes, supra, that the plaintiff were estopped by their election to pursue the remedy of claim and delivery, and having prosecuted that action to judgment, the latter was a bar to their second action, because both rested on identical facts. The latter doctrine was more fully discussed in McMahan v. McMahan,122 S.C. 336, 115 S.E., 293, 26 A.L.R., 1295, decided just before C.M. Davis Son Co. v. Stukes and apparently at the same time under consideration by the Court.
The respondents in this appeal first sued as beneficiaries under the policy and the original beneficiary intervened and recovered judgment, thus defeating respondents. Now they bring suit against the insurer upon the latter's alleged tortious failure to change the beneficiary. But the law is that "where the failure to complete a change of beneficiary is due to the neglect or delay of the insurer or its agents to make the proper endorsement thereof, the change is regarded as complete." 29 Am. Jur., 991. See, also, the decisions upon the point in 78 A.L.R., 972.
It appears that the trial Court fell into error in the view that the cause of action now asserted by respondents did not accrue "until the issues in the prior action had been finally determined." But it is the facts that give rise to the cause of action and they, of course, had transpired when the first action was commenced. Livingstonv. Sims, 197 S.C. 458, 15 S.E.2d 770.
I think that the respondents' second action should have been dismissed and, therefore, that the order of the County Court should be reversed; and it is so ordered.
Reversed.
(The foregoing, first written as a dissent, was concurred in by a majority of the Court and became the judgment.) *Page 312
MR. ASSOCIATE JUSTICE FISHBURNE and CIRCUIT JUDGE E.H. HENDERSON, ACTING ASSOCIATE JUSTICE, concur.