Auto Mut. Indemnity Co. v. Moore, 6 Div. 248
| Decision Date | 27 January 1938 |
| Docket Number | 6 Div. 248 |
| Citation | 179 So. 368,235 Ala. 426 |
| Parties | AUTO MUT. INDEMNITY CO. v. MOORE et al. |
| Court | Alabama Supreme Court |
Rehearing Denied Feb. 24, 1938
Appeal from Circuit Court, Blount County; J.H. Disque, Jr., Judge.
Bill by the Auto Mutual Indemnity Company against Roy Moore, by his next friend, and others, for a declaratory judgment interpreting an automobile liability policy, and for injunctions against actions at law brought by the named respondent and his father against complainant and its insured. Temporary injunctions were dissolved, and complainant appeals.
Decree affirmed, and temporary injunction pending appeal dissolved.
J.P Mudd, of Birmingham, for appellant.
J.T Johnson, of Oneonta, for appellees.
The facts in this case, as set forth by the pleading filed in the cause, are as follows The appellant, Auto Mutual Indemnity Company, a foreign corporation duly licensed and authorized to do insurance business in Alabama, issued a contract of automobile liability insurance to Craig Stracener, appellee, which insurance policy was intended to be and was filed by him, as a contract carrier, with the Alabama Public Service Commission under the act of October 28, 1932. Gen.Acts 1932 Ex.Sess., p. 178. On the policy there was an endorsement providing that said insurance policy would not cover injuries and damages to or sustained by any person while riding on the vehicle insured. The policy became effective on April 17, 1936.
On April 24, 1936, the automobile truck insured under said policy of insurance was involved in an accident in Birmingham, Ala. At the time of the accident Roy Moore, then about twelve years of age, an appellee in this cause, was riding in said truck and received substantial personal injuries, including the fracture of a leg. Thereafter, the said Roy Moore, by his next friend and father, J.A. Moore, filed a suit at law for damages for personal injuries in the circuit court of Blount county, Ala., against the said Craig Stracener and the appellant; and the said J.A. Moore, an appellee herein, also filed a suit at law for damages on account of alleged loss of services of and expenses of caring for his said son, the said Roy Moore, said suit being also filed in the circuit court of Blount county, Ala., and against the said Craig Stracener and the appellant.
The appellant took the attitude and contended that the said claims and suits for damages filed by the said appellees, Roy Moore and J.A. Moore, were not covered by its said insurance policy and that it was under no obligation to either of said appellees thereunder in connection with their respective injuries and damages sustained on account of said accident, and also that it was not obligated thereunder to defend or in any manner protect the said Craig Stracener, its insured, in connection with said suits and claims; and further that it was not properly joined as a party defendant in said damage suits. All of the appellees took the attitude that said insurance policy does cover the said claims and suits of said Roy Moore and J.A. Moore for damages on account of said injuries received by said Roy Moore while riding in said truck at the time of said accident; and the said Craig Stracener, the insured under said insurance policy, also demanded that the appellant defend said damage suits and protect him in connection therewith according to the terms and provisions of said insurance policy, despite said endorsement excluding coverage for riders on the vehicle insured thereunder. The appellees Roy Moore and J.A. Moore also contended that the appellant was properly joined as a party defendant in said damage suits.
The aforesaid disputes having arisen between the appellant and the appellees, the appellant filed in the equity division of the circuit court of Blount county, Ala., this suit under the Uniform Declaratory Judgments Act, asking that court to render a judgment or decree declaring the rights, duties, and obligations of the appellant and appellees under said insurance policy with respect to said suits and claims for damages, and particularly as to whether the appellant is obligated thereunder to defend or in any manner protect said Craig Stracener in connection with said claims and suits for damages, and also as to whether the appellant was properly joined as a party defendant in said damage suits. At the time of filing this suit, the appellant prayed for, and the court below granted and issued, writs of injunction against the said Roy Moore and his next friend and attorney of record in his said damage suit and against the said J.A. Moore and his attorney of record in his said damage suit, enjoining them from prosecuting further and proceeding further with the trial of or taking any further action with respect to the aforesaid actions at law brought by them against the appellant and the said Craig Stracener, pending the final determination of this cause and until further orders from said court, and which writs of injunction were duly executed upon said persons.
The court dissolved the temporary injunction on motion. The appeal is from that decree.
The first proposition argued by appellant in brief is that the court committed error in dissolving the injunction when the answer of respondents, which was considered on the motion, was not verified.
The motion to dissolve was made on the grounds that there was no equity in the bill, and because the answer denied the equity of the bill. No answer had then been filed. On the day that motion was heard, an unsworn answer was filed. Objection was made because it was unsworn, and the objection was overruled. The motion to dissolve was then heard, and that included in the submission the answer as expressly stated on the minutes.
The decree of the court was general and did not state whether it was based on a want of equity or on the denials of the answer.
Rule 32, Chancery Practice, provides that, before a motion can be entertained to dissolve an injunction upon the denials of the answer, it must be sworn to. Again it is said that a motion to dissolve confesses the averments of the bill, and, in the absence of a verified answer denying its material averments, can be grounded only on a want of equity in the bill. Burch v. Burch, 231 Ala. 464, 165 So. 387.
An unverified answer on such a submission is therefore as no answer. The decree of the court must be reviewed as if there had been no answer. But, if there was no equity in the bill sufficient to sustain an injunction, there was no error in dissolving it...
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