U.S. Fidelity & Guaranty Co. v. Yeates

• Decision Date: 12 January 1928
• Docket Number: 6 Div. 824
• Citation: 115 So. 174,217 Ala. 150
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. YEATES et al.
• Court: Alabama Supreme Court

115 So. 174

217 Ala. 150

UNITED STATES FIDELITY & GUARANTY CO. v. YEATES et al.

6 Div. 824

Supreme Court of Alabama

January 12, 1928

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by Marie Yeates, suing by her next friend, Mrs. Harry C. Yeates, against N.W. Remond, Augusta Friedman's Shop Inc., and the United States Fidelity & Guaranty Company, with cross-bill by respondent, Augusta Friedman's Shop, Inc. From a decree overruling demurrer to the original and cross-bills, respondent United States Fidelity & Guaranty Company appeals. Affirmed.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

Mullins & Jenkins, of Birmingham, for appellee Yeates.

Leader & Ullman and Bradley, Baldwin, All & White, all of Birmingham, for appellee Augusta Friedman's Shop, Inc.

SOMERVILLE J.

With respect to the bill of complaint, appellant's insistence is that the showing of a judgment for complainant against Wm. R. Remond, even with the showing that the real person, who was sued and served with process, and who actually appeared and defended the suit, without objection because of the misnomer, was N.W. Remond, is not sufficient to fasten liability upon the appellant company as insurer of N.W. Remond, under the provisions of sections 8376 and 8377 of the Code. These statutes impose an absolute liability upon the insurer when the loss or damage for which the insured is liable occurs, and authorize a suit in equity by the injured plaintiff in judgment against the defendant and the insurance company, to have the insurance money applied to the satisfaction of the judgment, if the judgment has remained unsatisfied for 30 days after its rendition. Globe Indemnity Co. v. Martin, 214 Ala. 646, 108 So. 761; Lorando v. Gethro, 228 Mass. 181, 117 N.E. 185, 1 A.L.R. 1374.

Under the allegations of the bill of complaint, as amended, the judgment obtained against Wm. R. Remond was unquestionably a good judgment against N.W. Remond, because N.W. Remond was the person intended to be sued, and the person actually served with the process, and the person against whom the judgment was actually rendered without any objection from him that he was misnamed in the complaint. To this conclusion the authorities are overwhelming, if not unanimous (33 Corp.Jur. 1200, § 132), and our own decisions are clearly and specifically in accord (Naftel Dry Goods Co. v. Mitchell, 212 Ala. 32, 101 So. 653; Tarleton v. Johnson, 25 Ala. 300, 310, 60 Am.Dec. 515; M. & M. Ry. Co. v. Yeates, 67 Ala. 164; Lehman, Durr & Co. v. Warner, 61 Ala. 455).

As observed in the last-cited case, "When it becomes necessary to aver or plead the judgment, the real party, notwithstanding the mistaken name, may be connected with it by averment of his proper name."

If such a judgment is binding on the misnamed defendant in his own proper name, when duly identified, it is certainly binding on his insurer, as seems to be fully conceded by counsel for appellant.

We are not concerned here with the principles that restrict the right of a plaintiff to amend the record of his judgment nunc pro tunc, as argued by counsel for appellant, for such an amendment is not proposed, nor is it at all necessary to the attainment of the relief sought by the complainant in this bill. The demurrer to the bill, as amended, was properly overruled....