American Sur. Co. of N. Y. v. Hooker

• Decision Date: 06 March 1951
• Docket Number: 8 Div. 903
• Parties: AMERICAN SURETY CO. OF NEW YORK v. HOOKER.
• Court: Alabama Court of Appeals

Page 469

58 So.2d 469

36 Ala.App. 39

AMERICAN SURETY CO. OF NEW YORK v. HOOKER.

8 Div. 903.

Court of Appeals of Alabama.

March 6, 1951.

Rehearing Denied April 3, 1951.

Marion F. Lusk, of Guntersville, for appellant.

Scruggs & Scruggs, of Guntersville, for appellee.

The following is the count upon which the case was tried.

'Count 9

'The Plaintiff claims of the defendant the sum of $2,000.00 as damages for the breach executed by Union Planters National Bank & Trust Company, of Memphis, Tennessee, as Plaintiff and the defendant, American Surety Company of New York, as surety, a copy of which is attached hereto and marked Exhibit 'A', and made a part of this complaint the same as if copied herein verbatum, which said bond, together with an affidavit on the reverse side thereof executed by M. F. Lusk, who was attorney for said bank and trust company, which affidavit was false, all in the cause of Union Planters National Bank & Trust Company, a corporation, of Memphis, Tennessee, as Plaintiff, against A. Gentry Hooker, as defendant, were used by said bank with knowledge of the defendant at the time, or its duly authorized agent in the premises, that said attachment bond would be so used to procure an attachment writ in said cause which was obtained by virtue of said bond and was issued out of the Circuit Court of Marshall County, Alabama, at Guntersville, directed to any Sheriff of the State of Alabama to attach so much of the estate of said defendant, Hooker, in said cause as would be of value to satisfy an indebtedness claimed of $1,000.00 and costs according to the complaint, which was levied by the Sheriff of Marshall County by garnishment on the First National Bank of Guntersville and $2,005.00 of Plaintiff's money was tied up which said bank refused to release until said suit had been terminated. And the Plaintiff avers that at the time of the execution of said bond and of the issuance of said attachment writ that the Plaintiff bank in said cause had no legal grounds upon which to base such attachment and had no probable cause for believing that there were such grounds existing at that time and said attachment was wrongfully and vexatiously sued out and that said Plaintiff in said suit did fail to prosecute said suit to effect. Plaintiff further avers that as a natural and proximate consequence of the wrongful suing out of said attachment, coupled with the issuance and levy of said attachment writ, this Plaintiff has suffered damages in this, to-wit: in his business, his credit was impaired, his reputation injured, that he lost a large period of time, to-wit: 18 days from his business and incurred large expense in defending said attachment suit in the sum of, to-wit: $750.00, including his attorney's fees paid by him in the defense of said wrongful attachment, that he has suffered mental pain and anguish and injury to his feelings, all to his damages aforesaid, which on demand this Defendant has refused to pay, hence this suit.'

The following charges were refused to defendant:

'10. Gentlemen of the Jury, I charge you that if you are reasonably satisfied from all the evidence that Mr. Hooker could have paid the Bank $1000 and had the attachment dismissed at the Bank's expense, before he himself had incurred any liability, expense or loss, and that he deliberately refused to take advantage of that opportunity, then he is not entitled to a verdict for actual damages, regardless of whether the attachment was wrongful or even malicious.'

'20. Gentlemen of the Jury, if you are reasonably satisfied from all the evidence that when Mr. Hooker learned of the attachment being levied, he formed the purpose of bringing a suit on the bond to make the bank pay him damages, and if you are further reasonably satisfied that his activities thereafter in resisting the attachment suit were for the sole purpose of magnifying his injury, and that he could have paid $1000 and had the attachment dismissed on March 9, 1946 at the Bank's expense without any injury, loss or expense to himself, then he will not be entitled to any compensatory damages.'

CARR, Presiding Judge.

This is a suit by Amzi Gentry Hooker against The American Surety Company of New York.

In the court below the issues were formed by Count 9 of the complaint, the plea of the general issue, and a special plea of advice of counsel.

The trial resulted in a judgment for the plaintiff.

The reporter will set out Count 9 of the complaint.

There are ninety-seven assignments of error.

In approaching this review we will adhere to these rules:

Assignments of error which are not stressed in appellant's brief will not be considered. Supreme Court, Rule 10, Code 1940, Title 7 Appendix; Alabama Power Co. v. Thompson, 250 Ala. 7, 32 So.2d 795, 9 A.L.R.2d 974; Arrick v. Fanning, Ala.App., 47 So.2d 708.

Where in appellant's brief assignments of error are argued in groups, if any one of said assignments is without merit, a review of the others will be pretermitted. Moseley v. Alabama Power Co., 246 Ala. 416, 21 So.2d 305.

We will make no further reference to those assignments which are based on the rulings of the court to which appellant's attorney failed to except. Calvert v. J. M. Steverson & Sons Lumber Co., 244 Ala. 206, 12 So.2d 365; Broglan v. Owen, 34 Ala.App. 480, 41 So.2d 434.

The answers to some of the questions to which objections were interposed were not harmful to appellant. Stephens v. State, 250 Ala. 123, 33 So.2d 245; Kornegay v. State, 33 Ala.App. 338, 33 So.2d 405.

This observation will serve to illustrate our conclusion as to the assignments which are predicated on rulings incident to these doctrines.

In a few instances counsel for appellant did not interpose any objection to the question until after the answer thereto. Assignments predicated on rulings relating to these queries will not be reviewed. Jones v. Daniel, 34 Ala.App. 490, 41 So.2d 627; Kelley v. State, 32 Ala.App. 408, 26 So.2d 633.

Assignments 7 and 8

At the beginning of the trial proceedings this occurred:

'At a point in the rebuttal statement of the case to the jury by Mr. Scruggs:

'Mr. Scruggs: In answer to that, gentlemen of the jury, we say that if they made any investigation whatever it was a very scanty investigation.

'Mr. Lusk: We object to anything about an investigation.

'Mr. Scruggs: No. He has brought her in here now.

'Mr. Lusk: We haven't said anything about an investigation.

'Mr. Scruggs: Yes, yes, sir. Here is what he said----

'The Court: This inquiry goes through my mind here: Does it not have to be a firm of lawyers learned in the law of Alabama. The plea, I believe says,----

'Mr. Lusk: We don't put that in.

'The Court: They must be learned in the law of Alabama because a man in Honolulu or New York would not know whether----

'Mr. Lusk: I believe I will take an exception to that.

'The Court: I know, but your plea says it was submitted to lawyers, a reputable firm of lawyers. I think it has to be lawyers learned in the law of Alabama because a man in Memphis, Tennessee, or San Francisco wouldn't know whether----. I am not ruling, I am just giving you my thoughts.

'Mr. Lusk: That statement was made in the presence of the jury.

'The Court: We will adjourn and find out what the law is if there is any question of that.

'Mr. Lusk: We move for a mistrial in view of that statement made before the jury.

'The Court: Overrule. I don't know what the law is. I think I know what the law is but I want to find out.

'Mr. Lusk: With all due respect to the Court I believe that inquiry comes to (sic) late after the jury has been drawn, sworn and we have entered into the statement of the case. I consider the statement highly prejudicial to the defendant.

'The Court: I overrule your motion.

'Mr. Lusk: We except.

'The Court: That is my idea of what I think the law is. If you have anything to the contrary I would like to see it.

'Mr. Lusk: That is the first time that proposition has been broached to me.

'The Court: You have a lot of law in a law suit. My understanding is it must be a reputable lawyer of this state. A man learned in the law of this state. If you have any case to the contrary or either way I would like to see it.

'Mr. Lusk: I think it is highly prejudicial to raise that point and make that statement in the presence of the jury at this stage of the trial.

'The Court: I am going to rule whichever way I find the law is. They can't be prejudiced because I am going to clear it up and I want you to help me clear it up if you have any authorities.'

Later in the colloquy the trial judge stated:

'I am going to try to do it right. If I find the law one way I am going to rule it just the way I find it. I am telling you now if you don't show me a case to the contrary it must be a lawyer in Alabama that advised this suit.'

We have not attempted to set out all that was said by the attorneys and the judge, but an intelligent and fair review can be predicated on what we have delineated.

The evidence for the defendant discloses that members of a Memphis, Tennessee law firm were consulted about the matter.

Apparently the trial judge abandoned his views as expressed in the above quotations. In any event, in his oral charge he did not confine the advice of counsel doctrine to advice from only Alabama lawyers. At the request of the defendant he gave this written instruction:

'Gentlemen of the Jury, if you are reasonable (sic) satisfied that before the suing out of the attachment the Memphis Bank sought advice of reputable attorneys and made to them a full and fair statement of all the facts within its knowledge, or which be (sic) reasonable effors (sic) it could have obtained in reference to the grounds of attachment, and that said attorneys advised the Bank that it had probable cause for the attachment, and that the Bank in good faith acted on said advice, then as a matter of law this would be a complete defense to this suit and you cannot find a...