On June 24, 1933, AEtna Life Insurance Company issued its indemnity policy to H.W. Tallexast, doing business as Coastal Oil Company, agents for the Texas Company, insuring against loss and expense resulting from claims upon the assured on account of property damage caused by reason of ownership or operation of a certain automobile truck described therein; and concurrently therewith AEtna Casualty Surety Company issued its policy, indemnifying the oil company against loss or expense on account of bodily injuries suffered by any claimant resulting from the insured's ownership or operation of the same motor vehicle. The policies bore one number, were countersigned by the same agent and issued on one application, and were written on one continuous sheet of paper, to which was attached a rider designating the amount of liability assumed by each company.
On June 30, 1933, the truck described in the contracts of insurance, while being driven by one George Nofal, an employee of the insured, and on which about twenty boys were *Page 484 riding at the time, collided with an automobile owned and operated by the plaintiff, W.R. Adderton. Thereafter Adderton sued the oil company and the truck for $3,000.00 on account of alleged damage to his car and personal injuries to himself resulting from such collision. The jury returned a verdict in a lump sum for $1,500.00 actual damages. Execution was then issued, and the property of the oil company was levied upon and sold and the proceeds were applied to the judgment, leaving an unpaid balance of $1,481.85.
As nothing further could be collected from the insured, Adderton sued the two insurance companies jointly, his action being based upon certain provisions of the policies. The defendants interposed separate demurrers to the complaint, which were sustained by Judge Sharkey; the plaintiff then filed, as allowed by the Court, an amended complaint, which the defendants separately moved to dismiss. The motions were denied, and the companies thereupon made separate answers, setting up various defenses. On trial of the case the requests of the defendants for a nonsuit and for a directed verdict were denied, the Court instructing the jury to find for the plaintiff.
The appellants impute error to the trial Judge as follows: (1) In overruling defendant's motions to dismiss the amended complaint; (2) in refusing their motions for a nonsuit and for a directed verdict; (3) in ruling that there could be a general verdict for plaintiff in one lump sum against both defendants, and in so directing a verdict; (4) in construing the policies of insurance which were the basis of plaintiff's action; and (5) in directing a verdict for the plaintiff on the ground that there was no issuable fact for submission to the jury.
In regard to question (1), the plaintiff, as we have stated, sued the two insurance companies jointly. The grounds of the defendants' demurrers were (1) that the facts stated "affirmatively show that there is (as between the two *Page 485 companies) no joint liability," but that the "liability, if any, of the two defendants is several"; and (2) that it appears on the fact of the complaint that several causes of action are improperly united. The Judge of the Civil Court, upon consideration of plaintiff's allegations, held as follows: "It being apparent from the complaints that the liability, if any, of the defendants in each case is several and not joint, and that the joinder of these several causes of action in one complaint is not permitted under the provisions of Section 487, Code 1932, since each cause of action does not affect both defendants, it follows that the demurrers must be sustained."
No appeal was taken from this order. The plaintiff, however, alleged in his amended complaint, in addition to the matter already pleaded, that Adderton had no knowledge, prior to the trial of the case in which the Coastal Oil Company was defendant, of the existence of the insurance policies; that he was informed that the assured sent both companies a copy of the summons and complaint in that action, but that neither of them appeared at the trial or made any defense whatever; that the judgment obtained against the Coastal Oil Company contained no stipulation as to the amount awarded for personal injuries or property loss, and that, therefore, he did not know the amount each of the companies should pay, but that both defendants are necessary parties for a complete determination of the controversy, they being together liable for payment of the judgment in full.
The defendants' motions to dismiss the amended complaint were made on the grounds (1) that it had already been determined in the suit that the two defendants could not be jointly sued, and (2) that the plaintiff had no joint cause of action against the defendants, all of which had been passed upon in the Court's order sustaining the demurrers, and that such determinations had become res adjudicata. In disposing of these motions, Judge Sharkey, after reviewing the allegations of the two complaints, said: *Page 486
"I am still of the opinion that the liability of the defendants, if any, is several and not joint, and that the allegations of the original complaint were insufficient to show that both defendants were necessary parties to the action.
"The order sustaining the demurrers was a final determination of all questions raised by the allegations of the original complaint, and to this extent the defendants' position is sound; but it is likewise true that that order is not res adjudicata as to any issue created by allegations of new matter contained in the amended complaint. It seems to me that in this amended complaint plaintiff has supplied the essential allegations (which were lacking in his original pleading) to show that the presence of both defendants is necessary to a complete determination of the rights of all parties to this controversy. The only reasonable conclusion to reach, under all the circumstances, is that the absence of either of the defendants would render practically impossible a complete determination of the rights of all parties in interest, even if the plaintiff should resort to two separate actions against them. In addition, a multiplicity of suits will be prevented by maintaining the present action against both defendants. This doctrine has been applied by our Courts in a great variety of cases, and I am convinced that the instant case is one to which it is peculiarly applicable."
The appellants argue that this was error, for the reason that it had been as definitely determined as possible by the order sustaining the demurrers that the causes of action based on the two contracts made with different companies and insuring against different hazards cannot be joined in the same complaint, that is to say, the defendants could not be sued jointly on the policies.
In support of his position, the respondent claims that the appellants, as shown by their contracts, have such a close relationship and such a privity of interest in the subject-matter of the suit that the plaintiff should not be required to separate them and be put to the trouble and expense of two *Page 487 suits; and that, in view of this privity of relation and mutual interest in the controversy, the absence of either company would render impossible a complete determination of the rights of all parties in interest. In short, that such determination could not be had in separate actions. For this reason it is contended that the joinder of these defendants is permitted under Section 404 of the Code of 1932.
Was there error of law, under the facts stated, in refusing the motions?
In Mortgage Acceptance Corporation v. Broadwell,153 S.C. 67, 150 S.E., 345, this Court, in passing upon a similar question, quoted the following from Duke v.Telegraph Company, 71 S.C. 95, 50 S.E., 675, 677: "The principle deducible from the authorities is that a judgment sustaining a demurrer is a bar to a second action on the same facts, but, when the complaint in the second action supplies the allegations that rendered the first complaint demurrable, it is not res judicata."
In Hodge v. Lumber Corporation, 90 S.C. 229,71 S.E., 1009, it was said:
"In Duke v. Tel. Co., 71 S.C. [95] 101, 50 S.E., 675, the Court ruled that a judgment dismissing a complaint on demurrer, because of the omission of an allegation essential to the cause of action, does not bar a second action in which the necessary allegation is supplied. The reason is that the merits of the case, as disclosed in the second action, were not heard and decided in the first.
"But the authorities cited by the Court in that case recognize this distinction: That where the complaint is dismissed, not because of the omission of a material allegation, but because of the affirmation therein of facts which show that plaintiff is not entitled to recover, a second action is barred, because the first was necessarily a decision upon the merits."
We have given much thought and consideration to the question stated, and are of opinion, as held by Judge *Page 488 Sharkey, despite the form and manner in which they were issued, that the policies of insurance sued upon, which definitely fix the amount and kind of liability of each company, are separate and distinct contracts. Under the allegations of the original complaint, the Court was, therefore, undoubtedly correct in sustaining the demurrers on the ground that the liability of the defendants was several, and not joint, and that the joinder of the causes of action in the complaint was not permissible. And, even if the additional allegations contained in the amended complaint, to the effect that the presence of both defendants was necessary to a complete determination of the rights of all parties to the controversy had been incorporated in the original complaint, the sustaining of the demurrers would still have been proper, as these allegations do not show a joint liability. It seems clear, therefore, that the demurrers were sustained, not because of the omission of allegation essential to the cause of action stated, but because of the affirmation of facts alleged in the original complaint, which showed that the plaintiff was not entitled to recover, as was sought to be done, on a cause of action alleging joint liability of the defendants. It follows that this determination by the Court, from which there was no appeal, because res adjudicata under the case of Hodge v. Lumber Corporation, supra.
The fact that it is made difficult, by reason of the prior proceedings to which the insurance companies were not parties, to now separate in a complaint against both companies the amount of damages suffered from personal injury and that suffered from property damage, does not change the liability of the defendants from a several to a joint liability. Nor does the rule against multiplicity of suits control or affect the situation, as contended by the respondent. The Court finds itself unable, therefore, in the present appeal, as much as it might like to do so, to untangle the complications — whatever blame may attach to the defendants for the existing confusion — which have arisen by reason of *Page 489 the verdict for a lump sum found by the jury in the case against the oil company, without doing violence to well-settled principles of law. Certainly, these principles may not be changed to aid the plaintiff in establishing his claims against the defendants in the action here brought, although they may appear to be just. However, he is not barred from bringing separate suits against these companies, despite the verdict for a lump sum given him against the insured. Clearly, in such separate actions the jury could determine, fix, and declare, upon testimony presented, the amount of damages suffered from property loss and that suffered from personal injuries. This assignment of error is sustained.
While the conclusion reached makes it unnecessary to consider the other questions presented by the appeal, we deem it proper to say that the testimony made an issue of fact for the jury as to whether the truck was being used for carrying passengers for hire, within the meaning of the policies, at the time the collision occurred.
The judgment of the Civil Court of Florence is reversed and the complaint dismissed.
After the first hearing of the appeal in this case, this opinion was written as the opinion of the Court, and was concurred in by Mr. Justice Fishburne. Two additional hearings were thereafter had, at the last of which three justices of this Court and Acting Associate Justice Gaston sat. Judge Gaston has written an opinion in which he holds that the appeal is without merit. In this opinion Mr. Justice Bonham concurs. The Court being evenly divided, the judgment of the Court below is accordingly affirmed, without the decision becoming a precedent, and this opinion is filed as a dissenting one.
MR. JUSTICE FISHBURNE concurs. *Page 490