Atlanta Life Ins. Co. v. Ash

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

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 "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 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 policy issued by defendant upon the life of plaintiff's brother.

When the suit was first filed, the complaint consisted of two counts. Thereafter, on the day set for the trial of the cause, the plaintiff, by leave of the court, amended her complaint by adding two additional counts numbered 3 and 4. These counts, added by way of amendment, appear in the report of the case.

There was a demurrer to each of the counts of the complaint, but the judgment entry discloses that the court made no order thereon, and the judgment recites: "Defendant files pleas 1, 2 and 3; attorneys in open court agree to plead in short by consent."

The case was tried upon the theory that the defendant had pleaded the general issue, and an election on the part of plaintiff to hold the agent, Nedric Thompson, not the principal, the Atlanta Life Insurance Company, liable to her for the wrongs complained of.

The evidence on the part of the plaintiff tended to prove each and every material allegation of the complaint, and that she had not elected to look to the agent for repayment of the amount due her, and had not renounced any remedy she may have had against the Atlanta Life Insurance Company, for and on account of the fraud of its agent.

On the part of the defendant, there was evidence tending to show that the defendant's agent, Nedric Thompson, practiced no fraud or deceit upon the plaintiff; that while he did get from her, on the dates set out in counts 3 and 4, a check for $140, and a check for $200 drawn on the First National Bank of Birmingham, Ala., which were afterwards paid to him by said bank, the transactions represented, in truth and fact, two loans made by the plaintiff to said Thompson. There was also testimony offered by the defendant tending to show that, after this suit was brought, the plaintiff and her attorney, duly authorized, entered into negotiations for the repayment of the money by the said agent, and that the said Thompson had actually repaid to the plaintiff, or to her attorney, $15, for which plaintiff executed to Thompson a receipt, and had also paid to the plaintiff's attorney $10 on his fee. That he also executed his note to the plaintiff for the sum of $300, payable in the monthly sum of $20 until paid in full.

The testimony on the part of the plaintiff tended to show that she specifically informed her attorney that she would not settle her case against the defendant until she was paid in full. That plaintiff did not authorize the taking of the note, and has never ratified the act. In other words, the question of an election was, under the pleading and the evidence in the case, one for the jury, assuming that, in a case like the present, such a plea would present a defense to the action-a question we are not now called upon to decide, as the parties treated the plea as presenting a defense, if it was proven.

Let it be here understood, however, that this action is to recover damages for a tort committed, so it is charged, by the defendant's agent against the plaintiff. It must not be taken for granted that, in anything said above, we commit ourselves to the proposition that the principle of an election applies, nor do we commit ourselves to the proposition that the plaintiff, in...