The Chief Justice has written a strong opinion in this case, and has cited precedents in support of it. I am somewhat of a strickler for following established precedent, but I am constrained to the opinion that in this case a too rigid adherence to precedent will sacrifice the substance to the shadow. I may invoke the Apostle's admonition that "the letter killeth but the spirit giveth life."
To the first complaint the defendants separately demurred, mainly upon the ground that plaintiff depended for recovery upon a joint liability of the two defendants, whereas the facts stated in the complaint showed that the liability of the two defendants was a several and not a joint liability. *Page 478
The trial Judge sustained the demurrer, and gave plaintiff leave to amend his complaint. From the order sustaining the demurrer there was no appeal.
To the amended complaint the defendants separately interposed a motion to dismiss the amended complaint on the grounds that "it has already been determined in this suit that the two defendants cannot be jointly sued and the order to that effect is res adjudicata.
"That it has already been determined by the Court in this suit that plaintiff cannot maintain a joint action on account of the matters and things set forth in the purported amended complaint — and such determination has become res adjudicata. That the purported amended complaint is inconsistent with the order of the Court sustaining the demurrer to the original complaint and it does not conform to the permission to amend the complaint."
The Court overruled the motion to dismiss the amended complaint.
In the order to this effect, Judge Sharkey has succinctly and clearly stated the facts out of which the litigation grew, and the matters which, in his opinion, differentiate the amended from the original complaint, as follows:
"The following is a statement in substance of the allegations set forth by plaintiff in his original complaint: The corporate capacity of each defendant; the issuing to Coastal Oil Company of the two policies which he fully describes and which he designates as `their joint and concurrent policy of insurance'; the right provided for therein for a direct action against the Insurance Companies by any person obtaining final judgment against Coastal Oil Company, under certain conditions; the occurrence of the collision referred to and the resultant injury to plaintiff and his automobile; the institution of the suit against Coastal Oil Company; the recovery of judgment and the return of execution issued thereon wholly unsatisfied with the exception of the $65.00 credit above mentioned. On these allegations plaintiff asked *Page 479 for judgment against both defendants for the balance remaining due on the judgment. * * *
"In the exercise of his right plaintiff served an amended complaint, and it contains in addition to the allegations set forth in the original complaint, the following statements which are embodied in paragraphs 10 to 14 inclusive:
"That the action against Coastal Oil Company was a suit for damage to plaintiff's automobile and for damage to his person; that the amount of the personal injury damage and the amount of the property damage were not separately stated in the verdict of the jury — the verdict being in the following form: `We find for the plaintiff actual damages in the sum of $1,500.00'; that both defendants are necessary parties for a complete determination of this controversy `as this action is brought upon the judgment to have same paid under the insurance, and the defendants together are liable for payment of this judgment in full'; that the judgment is for both personal injury and property damage, the respective amounts not being separated in the verdict of the jury; that the two defendants are liable as between themselves for their respective shares of the judgment; that the amount each of thm should pay is unknown to plaintiff; that both are interested in payment of the judgment and both are necessary parties for a complete determination of the controversy; then follows certain allegations purporting to show that the defendants acted jointly in issuing the `policy,' and that if their joint action in the premises does not render them jointly liable, their conduct amounted to fraud; that plaintiff prior to said trial had no knowledge of the existence of the insurance; that he is informed that Coastal Oil Company notified each of the defendants of the claim being made by the plaintiff, sending each of them copies of the summons and complaint in the aforesaid suit, but that neither of them appeared or defended said action."
Commenting upon the two complaints and the action of the Court thereabout, he said: *Page 480
"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, to this extent the defendants' position is sound; but it is also 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 insurance policy in this case (mark you it is policy, not policies) is written upon a continuous sheet; the AEtna Casualty Surety Company insured the Coastal Oil Company against property loss and damage and the AEtna Life Insurance Company insured the Coastal Oil Company against bodily injuries or death. All of this is in the one policy; all under the same date, issued by the same agency, there was but one premium, partitioned between the two companies as stated in the policy; upon the reverse side of the policy is this statement: "AEtna Casualty Automobile Policies — J.A. 3808690." A rider in the policy describes the insurance contracts thus: "Combined automobile insurance issued severally by the AEtna Life Insurance Company and the AEtna Casualty Surety Company." The following statement appears upon the policy:
"A. In addition to the limits of liability on account of claims for damage to the property of others (for injuries to persons), the Company shall also pay the expense of litigation and all costs taxed against the Assured in any legal proceeding defended by the Company together with all interest accruing after entry of judgment up to the date of payment *Page 481 by the Company of its share of the judgment." (Italics added.)
To my mind the evidence is conclusive that these two defendants made a joint contract with the insured. It was legal for them to do so. They elected to combine in the one contract of insurance and were careful to define the separate liability which each of them assumed; that was a part of the contract between them, just as the amount of the joint premium was divided between them.
It seems to me that to permit the defendants now to set up a several liability is to enable them to escape liability for which they were paid.
It is the accepted rule of law that in such cases the contract is to be construed most favorably to the insured.
The argument for the appellants is that the matter is maderes adjudicata by the order which sustains the demurrers to the original complaint. In his order overruling the motion to dismiss the amended complaint, Judge Sharkey points out that the amended complaint contains allegations not contained in the original complaint which show that, even if it be conceded that the liability of the defendants is several and not joint, there are disclosed conditions which bring the case directly in the purview of Section 404, Vol. 1, of the Code, 1932, because the action is brought upon the judgment recovered against Coastal Oil Company for damages to person and to property against both of which these defendants by their joint combined contract have insured plaintiff.
Section 404 provides that: "Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a completedetermination or settlement of the questions involvedtherein." (Italics added.)
The provisions of Section 409 of the Code are even more mandatory. That section directs that: "When a complete determination of the controversy cannot be had without the *Page 482 presence of other parties, the Court must cause them to bebrought in." (Italics added.)
In the judgment of Judge Sharkey, and it was in his discretion to determine, the new allegations made it his duty to make both these defendants parties to this action. He finds and holds in his last order that these allegations are not made res adjudicata by the order sustaining the demurrers to the original complaint.
The case of Holcombe v. Garland Denwiddie, 162 S.C. 379,160 S.E., 881, 883, is not in strict analogy with this case in so far as the facts go, but the principle therein announced is in accord with it. In that case plaintiff brought action to recover damages for injury to his wagon caused by collision with the defendant's truck. He recovered on this cause of action and then brought action to recover for personal injuries growing out of the same collision. This Court denied him the right of recovery in the second action, and adopted the rule laid down in the several cases cited in that case, to wit: "We therefore hold that for a single wrongful or negligent act which injuries both his person and his property, an individual has but a single cause of action."
My summary of the situation in the case now before the Court is this: The plaintiff has established judicially his right to recover for the damages he sustained in the collision with the person, or corporation, for whom the defendants are surety. The principal proves to be insolvent and plaintiff cannot collect his judgment from him. He now brings suit against the sureties; one of whom stands committed to make good his damage to his property and the other the injury to his person. If he had sued them separately, would they not have demurred on the ground that there was but one cause of action, and that grew out of the collision, therefore he must unite them in one action? I think that he was bound to sue them jointly. They had elected to join in one insurance contract in which they stated that for which each of them stood bound. It was a bipartite contract; the Coastal Oil *Page 483 Company of the one part, and the AEtna Casualty Surety Company and the AEtna Life Insurance Company, jointly, of the other part. The similarity of names indicates the close relationship between the defendants. Both of them are not only proper but necessary parties to the full and final determination of the case.
It was within the discretion of the trial Judge under the provisions of Section 404, and mandatory under Section 409, to make them parties defendant in the one action.
The trial Judge has found, and so holds, that the order sustaining the demurrer to the original complaint applied only to the allegations of that complaint; that the amended complaint contained allegations of other facts which distinguish it from the original complaint which set it apart from the application of the rule of res adjudicata. In this I think he is right. The judgment is affirmed.