Atlanta Life Ins. Co. v. Ash, 6 Div. 521.

• Court: Supreme Court of Alabama
• Writing for the Court: KNIGHT, Justice.
• Citation: 228 Ala. 184,153 So. 261
• Parties: ATLANTA LIFE INS. CO. v. ASH.
• Decision Date: 01 March 1934
• Docket Number: 6 Div. 521.

153 So. 261

228 Ala. 184

ATLANTA LIFE INS. CO.
v.
ASH.

6 Div. 521.

Supreme Court of Alabama

March 1, 1934

Appeal from Circuit Court, Jefferson County; R. B. Carr, Judge.

Action by Mason Price Ash against the Atlanta Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

It is within the discretion of the court whether or not to admit further evidence after the testimony has been closed.

Counts 3 and 4 of the complaint are as follows: [153 So. 262] "Count 3. Plaintiff claims of the defendant One hundred and fifty ($150.00) Dollars for that, to wit, on the 8th day of April, 1931, her brother Neal Swindall, was the owner of an insurance policy with the defendant in which the plaintiff was the beneficiary; and plaintiff avers that on said date, one N. S. Thompson, who was then and there an agent, servant or employee of the defendant, and while acting in the line of his authority, or within the scope of his employment, did then and there call at the residence of the plaintiff for the purpose of collecting a premium on said policy; and said Swindall not being present at said time (though said Swindall resided with the plaintiff, his sister) said Thompson requested plaintiff to pay said premium for her said brother.

"And plaintiff avers that in complying, or in attempting to comply, with said Thompson's said request, plaintiff, on said date, gave said Thompson a blank check on the First National Bank of Birmingham (in which said bank plaintiff had on deposit the sum of more than Four hundred ($400.00) Dollars which said blank bank check Thompson offered to fill out for plaintiff, plaintiff being then and there in ignorance as to how to fill out said check, of which said Thompson was well aware. And plaintiff avers that she then and there instructed said Thompson to make said bank check payable in the sum of One & 40/100 Dollars, which said Thompson then and there agreed to do; and plaintiff avers that said Thompson in fraudulent disregard of plaintiff's said directions, and with the intent to defraud plaintiff of her money, then and there fraudulently made said check payable to himself in the sum of One hundred and Forty ($140.00) Dollars, instead of the sum of One and 40/100 Dollars, as plaintiff had directed him to do. And plaintiff avers that, relying on Thompson's said promise to fill out said check as directed, and being in ignorance of the fraudulent insertion of the additional words which Thompson fraudulently added, and which made said check payable in the sum of One hundred Forty ($140.00) Dollars, instead of One and 40/100 Dollars, plaintiff then and there signed said check.

"And plaintiff avers that said Thompson afterwards cashed or collected the amount of said check, or caused the same to be cashed or collected, and said sum was wholly lost to the plaintiff; and plaintiff avers that she suffered said loss of said money by reason and as a proximate consequence of the fraudulent act or conduct of the said Thompson, who was then and there the servant, agent or employee of the defendant, and while acting in the line of his authority or within the scope of his employment.

"Count 4. Plaintiff claims of the defendant Two hundred, Fifteen ($215.00) Dollars, for that, to wit: on the 2d day of April, 1931, her brother Neal Swindall, was the owner of the insurance policy with the defendant in which plaintiff was the beneficiary; and plaintiff avers that on said date, one N. S. Thompson, who was then and there an agent, servant or employee of the defendant, and while acting within the line of his authority, or within the scope of his employment, did then and there call at the residence of the plaintiff for the purpose of collecting a part premium on said policy; and said Swindall not being present at said time (though said Swindall resided with the plaintiff, his sister) said Thompson requested plaintiff to pay said part of said premium for her said brother.

"And plaintiff avers that in complying, or in attempting to comply, with said Thompson's request, plaintiff, on to wit: the 22d day of April, 1931, gave said Thompson a blank bank check on the First National Bank of Birmingham (in which said bank plaintiff had on said date more than Two hundred ($200.00) Dollars which said blank bank check Thompson offered to fill out for plaintiff, plaintiff being then and there in ignorance as to how to fill out said check, of which said Thompson was well aware. And plaintiff avers that she then and there instructed said Thompson to make said bank check payable in the sum of Two and no/100 Dollars, which said Thompson then and there agreed to do; and plaintiff avers that said Thompson in fraudulent disregard of plaintiff's said directions, then and there fraudulently made said check payable to himself in the sum of Two hundred ($200.00) Dollars, instead of in the sum of Two & no/100 Dollars, as plaintiff had directed him to do. And plaintiff avers that, relying on Thompson's said promise to fill out said check as directed, and being in ignorance of the fraudulent insertion of the additional words which Thompson fraudulently added, and which made said check payable in the sum of Two hundred Dollars ($200.00) instead of Two & 00/100 Dollars, plaintiff then and there signed said check.

"And plaintiff avers that said Thompson afterwards cashed or collected the amount of said check, or caused the same to be cashed or collected, and said sum was wholly lost to [153 So. 263] the plaintiff; and plaintiff avers that she suffered said loss of said money by reason and as a proximate consequence of the fraudulent act or conduct of the said Thompson, who was then and there the servant, agent or employee of the defendant, and while acting within the line of his authority, or within the scope of his employment."

This charge was refused to defendant: "(12) The court charges you, gentlemen of the jury, that the defendant, the Atlanta Life Insurance Company, would not be liable for the acts of its agent N. S. Thompson unless you are reasonably satisfied from the evidence that he was acting for the defendant company at the time he received the checks in question or that the defendant later ratified his acts."

L. H. Etheridge, of Bessemer, for appellant.

Robert J. Wheeler, of Birmingham, for appellee.

KNIGHT, Justice.

Suit by plaintiff against the defendant to recover damages for two alleged fraudulent acts, perpetrated by an agent of defendant, against the plaintiff, in the collection of premiums upon an insurance...