Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-07-20
COURT DECISIONS.
Notes of Cases Recently Decided,
Which are Of Interest to
Our People.
DrGESTEDB BY W. B. MARTIN.
Exclusively for virEinian-Pllot)
LEE v. MET. r. f. L. Asso.

LEE V. MET. r. +. L. ASSO.
Supreme Court of Appeals OF Virginia,
June IL, 1899.
MISJOINDER OF PARTIES IS NO
LONGER FATAL IN VIRGINIA, AS
THE COURT MAY ABATE THE
ACTION AS TO THE PARTY I'M
PROPERLY JOINED AND PRO
CEED BY OR AGAINST THE
OTHER PARTIES.
WHERE THERE HAS BEEN A TO-
TAI REFUSAL BY ONE PARTY
TO PERFORM a CONTRACT, THE
OTHER PARTY MAY SUE AT
ONCE.
THE PROCEEDINGS ON A POLICY
OF INSURANCE PROVIDED FOR
IN SECTION 3,251 OF THE CODE
ONLY AVAIL WHERE DEATH OR
LOSS HAS OCCURRED PRIOR TO
THE BRINGING OF THE SUIT.
This was an action founded on the
alleged violation by the defendant COM
pnny of certain provisions of a ccrti-
iicate of membership neld by the plain
tiff in said company.
Hhe lower court sustained q demur-
rer to the declaration and dismissed the
suit.
The Court says:
One of the grounds of demurrer relied
on is that the female plaintiff had no
cause of action, her right in the policy
sued on beng merely Il contingent and
not q vested right, and there was there
fore a misjoinder of parties.
If 1t be true as contcnded, that Mrs.
Lee had no cause of action and was
improperly Joined with her husband, it
was no ground for sustaining the de-
Il
ing the case. Misjoinder of parties is no
longer n fatal defect.
BY the express terms of the act of as
sembly approved February ~, 1894. il is
provided that, whenever ii shall appear
in any action at law or suit in equity
heretofore or hereafter instituted. by
the pleadings or otherwise, that there
has been n misjOinder Of parties. plain
tiff or defendant, the court may order
the action or suit to abate as TO any
party improperly joined and to proceed
by or against the others as IL such mis-
ionder had not been made. The word
may in the statute of this kind which is
in furtherance of justice means the
same as shall.
Another ground of demurrer is that
the action was brought for an antici-
patory breach or renunciatio of the
contract, and that the declaration does
not aver, as is required in such cases,
n distinct. uneQuivocal and absolute re-
fuSal to perform the contract on the
part OF the defendant.
a. S. Lee is still living, so that by
the terms OF the certificate or policy
no cause of action upon it has yet ac
crued. But the plaintiffs claim that,
Notwithstanding this fact. they can
maintain this action. because the asso-
citation has renowned and repudiatsd
the contract and given notice that 1t
no longer be bound by it. In England
and in IA number Of the States Of this
country. including Virginia. it has been
held that where there has been a total
refusal on the part of one Of the con-
tracing parties to perform the con-
tract on his part. the other may elect
to sue at once without waiting for the
time of performance TO arrive. But i'm
order to do this there must be IL dis
tinct. uneuuivocal and absolute refusal
to perform the contract.
Whilst the acts charged show a
grossly improper management on the
part of the association and its men,
bers, they do not show that the asso-
citation had abandoned or repudiated
the contract With the assured, but, on
the contrary, they show that the de-
PENDANT still treated the contract as
in force.
Another ground OF demurrer to the
declaration is that it was filed under
cur statute to simplify pleadings in ac-
t1oTS insurance nolicics, and that
statute only authorizes Inc statutory
complaint 10 he fled in cases where
the loss or death which is insured
against has already occurred and not
where the ground of action is an an
ticipatory breach or remuneration of the
contract.
The original declaration, to which n
demurrer was sustained was. as is
stated in the declaration, filed under
the statute. The amended declaration
does rot state in terms that ii was so
filed. but it is framed like u statutory
complaint and is clearly not good as a
common law declaration.
treated as q statutory complaint. the
demurrer to it was properly sustained.
Neither of the complaints makes the
averments required by the statute. II
REQUIRES that the COMPLAINT shall set
forth. among other things, the loss or
death relied upon as the ground of
recovery. The loss or death insured
against had not occurred when the
complaint was filed, so that no such
averment was or could be made.
Affirmed.
POArASKI V. GRANT.