Aladdin Temple Ben. Ass'n, D. O. K. K. v. American Standard Life Ins. Co., 6 Div. 231

• Court: Supreme Court of Alabama
• Writing for the Court: ANDERSON, Chief Justice.
• Citation: 179 So. 243,235 Ala. 431
• Parties: ALADDIN TEMPLE BEN. ASS'N, D.O.K.K., v. AMERICAN STANDARD LIFE INS. CO. et al.
• Docket Number: 6 Div. 231
• Decision Date: 20 January 1938

179 So. 243

235 Ala. 431

ALADDIN TEMPLE BEN. ASS'N, D.O.K.K., v. AMERICAN STANDARD LIFE INS. CO. et al.

6 Div. 231

Supreme Court of Alabama

January 20, 1938

Rehearing Denied March 3, 1938

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by the Aladdin Temple Benefit Association, D.O.K.K., against the American Standard Life Insurance Company and the American Life Insurance Company of Alabama. From a judgment of nonsuit, plaintiff appeals.

Reversed rendered, and remanded.

Graham Perdue, of Birmingham, for appellant.

J.L Drennen, of Birmingham, for appellees.

ANDERSON Chief Justice.

This appeal is upon the record proper and involves only the ruling of the trial court upon the pleading which superinduced a nonsuit by the plaintiff.

As we understand, special pleas 3, 4, and 5 attempt to invoke an estoppel against the plaintiff growing out of an election in bringing a previous suit described in said pleas, to which said pleas the trial court overruled the plaintiff's demurrer and which said ruling presents the paramount question involved in this appeal.

The doctrine of estoppel by election exists if a person has a choice of actions, that is, the basis for the application of the doctrine is in the proposition, that where there is, by law, or by contract, a choice between the remedies, which proceed, upon opposite or irreconcilable claims of right, the one taken must exclude and bar the prosecution of the other. 9 R.C.L. p. 957, § 1.

"The principles governing election of remedies are necessarily based upon the supposition that two or more remedies exist. If in fact or in law only one remedy exists, there can be no election by the pursuit of another and mistaken remedy. It is a well-established rule that the choice of a fancied remedy that never existed and the futile pursuit of it, either because the facts turn out to be different from what the plaintiff supposed them to be, or the law applicable to the facts is found to be other than supposed, though the first action proceeds to judgment, does not preclude the plaintiff from thereafter invoking the proper remedy." 9 R.C.L. p. 962, § 9.

In other words, two or more actions must be open to and maintainable by the plaintiff when the election is made by the first suit. Southern Ry. Co. v. City of Attalla, 147 Ala. 653, 41 So. 664; Calhoun County v. Art Metal Construction Co., 152 Ala. 607, 44 So. 876; Todd et al. v....