American Standard Life Ins. Co. v. Johnson
| Decision Date | 17 October 1935 |
| Docket Number | 6 Div. 786 |
| Citation | 231 Ala. 94,163 So. 632 |
| Parties | AMERICAN STANDARD LIFE INS. CO. v. JOHNSON. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Lamar County; R.L. Blanton, Judge.
Action in trover by W.C. Johnson against the American Standard Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.
Reversed and remanded.
Hugh A Locke, of Birmingham, for appellant.
R.G Redden, of Vernon, for appellee.
The trial was had on common counts and conversion of certain notes given for premiums on insurance. The judgment was for plaintiff.
The insistence here is that the notes were not the subject of conversion; that there was error in the oral instruction to the jury and error to refuse the general affirmative instruction requested and refused to defendant.
The rule of giving and refusing general affirmative instruction is well understood. McMillan v. Aiken, 205 Ala. 35 40, 88 So. 135. In this case there were adverse inferences that may be drawn as to plaintiff's interest in the notes as he took and transmitted the same to his principal in lieu of cash premiums required.
The trial court in its oral charge, with reference to the notes in question, instructed as follows: "Now, gentlemen evidence has been offered in this case tending to show, indeed I believe the court may state that the parties agree that the plaintiff in this case took certain notes from people to whom he sold insurance to secure the payment of initial premiums on the policies issued and that he sent these notes, that he endorsed them by writing his name across the back of the notes, and sent these notes or placed these notes with the defendant company to be held by the defendant company as security for any monies which the plaintiff might be due the defendant on account of advancements made by the defendant company to the plaintiff, and on account of monies that might be due by the plaintiff to the defendant on account of nets, they call it."
To this there was due exception, and the court sought to modify the instruction as follows: "So twenty per cent of the notes would belong to the defendant company, and eighty per cent the defendant held as security for any indebtedness which the plaintiff might be due to the defendant company."
Exception was made to that part of the modification which assumed that it was an established fact that a part of the notes was given and held as security for any indebtedness which the plaintiff might be due the defendant. This was the assumption of a disputed fact of suretyship--an important issue to be determined by the jury.
If these negotiable papers were indorsed in blank by the payee and if title vested in the holder thereof under the modified contract (Dawsey v. Kirven, 203 Ala. 446, 83 So. 338, 7 A.L.R. 1658), there was error, and the trial court...
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...v. Henderson, 258 Ala. 419, 63 So.2d 379 (1953); Hamilton v. Hamilton, 255 Ala. 284, 51 So.2d 13 (1951); American Standard Life Insurance Co. v. Johnson, 231 Ala. 94, 163 So. 632 (1935); Warren v. Peppers, 31 Ala.App. 394, 17 So.2d 585 (1944). Although there are cases in which it is said th......
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...they did not have the ownership or right of possession of the property necessary for a conversion claim); American Standard Life Ins. Co. v. Johnson, 231 Ala. 94, 163 So. 632 (1935) (insurance agent who indorsed notes to company could not maintain action against company for conversion of th......
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