Calvert Fire Ins. Co. v. Maddox

• Decision Date: 12 April 1955
• Docket Number: 5 Div. 431
• Citation: 82 So.2d 277,38 Ala.App. 194
• Parties: CALVERT FIRE INSURANCE COMPANY v. P. Q. MADDOX et al.
• Court: Alabama Court of Appeals

Page 277

82 So.2d 277

38 Ala.App. 194

CALVERT FIRE INSURANCE COMPANY v. P. Q. MADDOX et al.

5 Div. 431.

Court of Appeals of Alabama.

April 12, 1955.

Rehearing Denied May 17, 1955.

Walker & Walker, Opelika, for appellant.

L. J. Tyner, Opelika, for appellees.

PRICE, Judge.

Appellant, Calvert Fire Insurance Company, brought suit to recover from appellees, alleged third party tort-feasors, the amount which it had paid to a policyholder under an automobile insurance policy.

As originally filed the complaint consisted of two counts. Count 1 is as follows:

'1. The plaintiff, Calvert Fire Insurance Company, a corporation, claims of the defendants, P. Q. Maddox and Curtis Roy Craven, the sum of Five Hundred Twelve and 16/100ths ($512.16) Dollars for this: On, to wit, the 9th day of April, 1952, the plaintiff, which is engaged in the automobile insurance business, had in force a policy of collision insurance, to wit, Policy Number 208-11389, insuring the 1951 model two-ton automobile truck, Motor Number F6 Rimp. 25667, owned by H. J. Turner, and on, to wit, said date, while said policy of insurance was in full force and effect the defendants were engaged in the operation of a Ford F6 truck hauling gravel for the J. B. Maynard Construction Company upon a narrow, dirt road leading to and from a gravel pit being used at said time and place for two way traffic by numerous trucks hauling gravel and dirt for said Company, said road being in Lee County, Alabama, about 8 miles southerly from Opelika, Alabama, and the defendants then and there so negligently operated said F6 Ford automobile truck that by reason of said negligence and as a proximate result and consequence of said negligence said automobile truck struck or collided with the 1951 model two-ton Ford truck which was insured by said policy of insurance, and which was then and there being driven by the said H. J. Turner along said road, where he had a right to be in his business of hauling gravel and dirt for the said J. B. Maynard Construction Company, whereby and as a proximate result and consequence of said negligence Turner's said Ford Truck was damaged, its differential housing damaged, its rear axles and springs strained, and broken, its wheels bent and its tires demolished, and its frame and chassis otherwise bent, twisted and crushed; and the plaintiff further avers that the estimated cost of repair of Turner's said truck was $738.13; that under the terms of the deductable clause of policy of insurance above referred to the plaintiff was not required to pay the first $225.97 of said damages, and consequently, on, to wit, April 15, 1952, the plaintiff paid to said Turner, the insured under the terms of said policy, the sum of $512.16 and received from him a loan receipt therefor; the plaintiff alleges that under the terms of said policy of insurance and of said loan receipt, and by operation of law, it became subrogated to the said Turner's claim for damages against the defendants in the amount of $512.16 for which it now sues.'

Count 2 adopted all of count 1 and added the allegations that after plaintiff had paid Turner for his loss and had become subrogated to his interest, said Turner, without plaintiff's knowledge or consent, entered into an agreement with the defendant Maddox, whereby each released the other from any and all damages to their respective trucks by reason of the accident, and, that at the time of the execution of said release, Turner and defendants knew of plaintiff's subrogation claim, therefore, plaintiff is the sole party interested in the suit.

Demurrer was overruled as to count 1 and sustained to count 2. Plaintiff amended its complaint by adding count 3, which adopted all of the allegations of count 1 and added the allegations that after paying its insured $512.16, plaintiff's attorneys notified defendants by letters mailed May 6 and May 29, 1952, addressed to their proper mailing addresses, with copies mailed to insured, making demand upon them for payment of damage to Turner's truck, and averring further that the letters were not returned, and that on June 2, 1952, defendant Maddox and Turner entered into the release and at the time of the execution of the release, Turner and defendants knew of plaintiff's subrogation claim. Demurrer was sustained to count 3, and plaintiff amended the complaint by adding count 4, which adopted all of count 1, and added allegations of the manner of the notification to defendants, setting out the letters, and to the insured, of plaintiff's subrogation claim and that the letters were not returned to the sender, but after such notice the sender received through mail a copy of the release executed by Turner and Maddox, with Maddox' return address on the envelope. On May 11, 1953, the court sustained demurrer to count 4, and the next day defendants filed plea of the general issue, and plea 2, which sets up a release between insured and defendants. Plaintiff's demurrer to plea 2 was overruled. Plaintiff took a non-suit, Tit. 7, Sec. 819, Code 1940, and assigns as error the rulings of the court sustaining demurrers to count 2 of the original complaint, counts 3 and 4 of the complaint as amended, and the overruling of the demurrers to plea 2. Assignment of error as to sustaining of demurrer to count 2 is waived by failure to argue the same in brief. Alabama Digest, Appeal & Error k1078(1); MacMahon v. City of Mobile, 253 Ala. 436, 44 So.2d 570.

The main theory of appellant's contention that the trial court erred in sustaining demurrer to counts 3 and 4 is that the averments in said counts sufficiently allege knowledge by defendants of plaintiff's subrogation claim at the time of defendants settlement with insured and the execution of the release agreement between insured and one of the...