Brasher v. First Nat. Bank

• Citation: 232 Ala. 340,168 So. 42
• Decision Date: 23 January 1936
• Docket Number: 6 Div. 836
• Parties: BRASHER v. FIRST NAT. BANK OF BIRMINGHAM.
• Court: Alabama Supreme Court

168 So. 42

232 Ala. 340

BRASHER v. FIRST NAT. BANK OF BIRMINGHAM.

6 Div. 836

Supreme Court of Alabama

January 23, 1936

Rehearing Denied May 7, 1936

Appeal from Circuit Court, Jefferson County; J.F. Thompson, Judge.

Action by Lela J. Brasher against the First National Bank of Birmingham. From a judgment of nonsuit, plaintiff appeals.

Reversed and remanded.

BOULDIN and GARDNER, JJ., dissenting.

Victor H. Smith, of Birmingham, for appellant.

Cabaniss & Johnston and K.E. Cooper, all of Birmingham, for appellee.

BROWN Justice.

The appeal is by the plaintiff from a judgment of nonsuit authorized by section 6431 of the Code, to reverse adverse rulings on the defendant's demurrer to counts 4, 5, A, B C, D, and E of the complaint, and embodied in the record in what is designated as a bill of exceptions, which shows nothing more than the rulings on the demurrer.

The statute above cited, where the nonsuit is superinduced by adverse rulings on demurrer to pleadings, authorizes an appeal and review on the record proper, and in such case a bill of exceptions serves no purpose except to incumber the record. Hermann v. Mobile County, 202 Ala. 274, 80 So. 112; Bush v. Russell, 180 Ala. 590, 61 So. 373; Berlin Machine Works v. Ewart Lumber Co., 184 Ala 272, 63 So. 567; Russell v. Garrett, 208 Ala. 92, 93 So. 711; Singer Sewing Machine Co. v. Henderson, 1 Ala.App. 483, 56 So. 108.

The plaintiff, before the ruling of the court was invoked, withdrew all counts of the complaint except those mentioned above, and the defendant withdrew all grounds of demurrer except grounds taking the following points: That the said counts do not state a cause of action; that the decree of the circuit court referred to in the complaint is res adjudicata of the matters complained of; that this suit is a collateral attack on said decree; that the facts alleged show that the plaintiff consented to the decree and is estopped thereby; and that the alleged advice by the defendant to the plaintiff was not an actionable wrong, but was the mere innocent expression of an opinion.

The several counts are in case, and the gravamen thereof is that the defendant fraudulently procured the plaintiff's consent to the rendition of the decree by the circuit court of Jefferson county, in equity, in the case of Breen & Gardien Insurance Agency, Inc., et al. Complainants, v. Lela J. Brasher, respondent, authorizing the defendant to turn over to this plaintiff certain "participations" in loans, the property of the defendant, of "little or no market value," in lieu of $81,758.23, proceeds of said insurance policies, adjudged to be the property of this plaintiff, to plaintiff's hurt and defendant's gain.

Counts 4 and 5, it may be conceded, are subject to the demurrable defect that their averments do not negative that plaintiff consented to said decree after being fully advised of the nature and want of market value of said "participations," and the contents and legal effect of said consent decree; but it is doubtful whether this point is taken by the specific grounds of demurrer not withdrawn. The point is not presented by ground 1; it is general and within the condemnation of the statute. Code 1923, § 9479; Commercial Credit Co. v. Ward & Son Auto Co., 215 Ala. 34, 109 So. 574; Perfection Mattress & Spring Co. v. Dupree, 216 Ala. 303, 113 So. 74.

Count A, when stripped of redundancy, avers, in substance and legal effect, that in May, 1929, and continuously thereafter, the defendant was in the banking business in the city of Birmingham, and conducted in connection with its business a trust department, holding itself out as "possessing the knowledge, skill, experience, competency, thoroughness, and faithfulness for the management of properties and estates of others *** and of advising widows, orphans, heirs, and other persons as to the investment of funds which such persons might receive or acquire by inheritance or otherwise, and invited the confidence of persons desiring to avail themselves of its services"; that plaintiff's husband, Omer Brasher, died in May, 1929, and the plaintiff employed the defendant to advise and assist her in the probation of his will and in the management of his estate, and to advise and assist her in the management, conservation, protection, and investment of her individual funds; that defendant accepted such employment and undertook to advise plaintiff and entered upon the performance of the duties of such employment, and so continued until after the 8th day of February, 1932, and plaintiff relied upon the defendant to so advise her; that thereafter a bill in equity was filed by Breen & Gardien Insurance Agency, Inc., et al. against the plaintiff, involving the insurance on the life of plaintiff's deceased husband, and the defendant was appointed as receiver to take possession of said policies and collect the insurance and hold the same subject to the further orders of the court; that the defendant as such receiver collected and received the proceeds of said policies, aggregating $100,000; that defendant, without authority of law, and without the consent of the plaintiff, wrongfully invested, expended, used, or diverted a large part of said proceeds in certain undivided interests or "participations" in certain loans or indebtednesses, which were payable to and held by defendant, setting forth sixteen loans aggregating $268,850, ranging from $3,850 to $70,000, in which the defendant as receiver had invested some of the proceeds of said insurance in "participations" ranging from $200 to $20,000, aggregating $45,575, the remaining interests "were owned and held by the defendant *** for its own behalf or for the benefit of other parties, whose names" are unknown to plaintiff; that no separate writing was taken by the defendant as receiver to evidence such interest in such "participations" acquired by the investment of such proceeds to distinguish such "participations" from others, and the mortgages securing said loans were executed or transferred to and held by the defendant, without evidence of the interest or rights of those whose funds were so invested; that while defendant was engaged in representing the plaintiff, advising and assisting plaintiff in the management of her said husband's estate, and in the management, conservation, protection, and investment of plaintiff's individual estate, the defendant, who had knowledge of the contents of the "consent decree" rendered by the circuit court in said receivership proceedings, which ascertained and adjudged that the creditors, complainants in said cause, were entitled to $25,000 of said funds, and that the balance of $81,758.23 was the property of plaintiff (defendant in said cause), which said decree recited that plaintiff had consented to the investment of the proceeds of said insurance money in said "participations" and authorized the defendant as receiver to turn over to plaintiff certain securities, consisting of said "participations," which were worth greatly less than their face value, and which had little or no market value, in lieu of said $81,758.23, facts known to defendant, but of which plaintiff had no knowledge; that defendant had an interest other than as receiver to conserve in procuring the plaintiff's consent, and of which plaintiff was without knowledge; that plaintiff was ignorant of the contents of said decree in so far as it recited that she had consented to the investment of the proceeds of said insurance policies in said "participations," and that it authorized the defendant to turn over to the plaintiff said "participations" in lieu of said $81,758.23, by delivering and assigning to her the securities remaining in its hands; that defendant, without disclosing to the plaintiff the contents of said decree in the above respects, and without disclosing to her its interest other than as receiver in having said decree entered, and without disclosing the facts in respect to the value of said securities, that it had foreclosed on some of them and had to purchase at the foreclosure sale, without realizing funds to meet the liability, and was burdened with taxes and tax liens, wrongfully represented to the plaintiff that it would be to her interest to consent that said decree be entered, and plaintiff relying on the advice and representation of the defendant gave her consent thereto.

Count B contains substantially all the averments of count A, with the further averment that defendant procured the decree to be entered; that its officers and agents were present when plaintiff gave her consent in writing, and acting within the line and scope of their employment in respect to the pending transaction knew that plaintiff was under the belief that after setting apart $25,000 of the funds to satisfy the complainants, and intervening creditors, by the terms of said decree she would receive the balance of $81,758.23, in cash; that she had no knowledge that said decree authorized the defendant to discharge its liability under said decree by transferring to her said impoverished securities, facts known to the defendant and its agents or servants handling said pending transaction, and advising plaintiff, and concealing said matters from the plaintiff, nevertheless advised her to enter into said consent decree, and having full faith in the defendant's integrity, ability, and faithfulness relied on said advice and gave her consent thereto, to her hurt and defendant's gain.

Count C, like count B, is in substance the same as count A, with the added averments that plaintiff "consented to the rendition of said decree in reliance upon the faithfulness and integrity of the defendant to advise her in such matters and that the defendant, claiming to act in pursuance of the rights given it...