Citizens Walgreen Drug Agency, Inc. v. Gulf Ins. Co.

• Decision Date: 22 August 1968
• Docket Number: 6 Div. 312
• Citation: 213 So.2d 814,282 Ala. 648
• Parties: CITIZENS WALGREEN DRUG AGENCY, INC., (Frank S. Blackford, as Trustee in Bankruptcy) v. GULF INSURANCE COMPANY et al.
• Court: Alabama Supreme Court

Page 814

213 So.2d 814

282 Ala. 648

CITIZENS WALGREEN DRUG AGENCY, INC., (Frank S. Blackford, as Trustee in Bankruptcy) v. GULF INSURANCE COMPANY et al.

6 Div. 312.

Supreme Court of Alabama.

Aug. 22, 1968.

Rehearing Denied Sept. 19, 1968.

Jenkins, Cole, Callaway & Vance, Birmingham, for trustee of Citizens Walgreen Drug Agency, Inc.

C. E. Sharp, W. J. Sullivan, Jr., and Sadler, Sadler, Sullivan & Sharp, Birmingham, for Gulf Ins. Co.

Waldrop Windham, Birmingham, for guardian ad litem of minor.

KOHN, Justice.

The action below was commenced by the filing of a sworn bill by the appellant, Citizens Walgreen Drug Agency, Inc., seeking a declaratory judgment and naming Gulf Insurance Company, a corporation, George Watson, Sr., George Watson, Jr., a minor, and J. C. Anthony, respondents. The bill prayed for an injunction and restraining order and a finding by the Court that the respondent, Gulf Insurance Company (hereinafter known as Gulf) was obligated to defend two damage suits on the civil side brought against the complainant by George Watson, Jr., and George Watson, Sr., and to pay any judgments incurred against the Citizens Walgreen Drug Agency, Inc. (hereinafter known as the drugstore). This action arose from an injury to a minor's eyes. On September 21, 1961, one Dr. Anthony compiled a prescription for one of his patients who was expecting the birth of a child. The prescription called for a 10% Solution of silver nitrate. The prescription was filled by a registered pharmacist, with the assistance and help of a non-registered pharmacist, at Citizens Walgreen Drug Agency, Inc. (drugstore appellant). This prescription should have been for a 1% Solution of silver nitrate to be put in the infant's eyes at a certain time after birth. Later, after the child's birth, drops of the solution from this bottle or container, which was filled by the drugstore, on the prescription of the doctor, were put in the eyes of the infant by the doctor which resulted in the injury to this child. The two people at the drugstore who had filled the prescription, which called for a 10% Solution of silver nitrate, filled it with a 10% Solution, and marked it as a 10% Solution.

At the time and date of this unfortunate incident, that is, the compiling of the prescription, the filling of the prescription, and using its contents on the child, the appellant, drugstore, had an insurance policy termed a comprehensive policy covering the drugstore appellant, issued by Gulf Insurance Company (appellee), and there was attached as a part of such policy a 'druggist's liability rider.'

On June 16, 1961, suits for damages for personal injuries, as a result of injuries to the child's eyes, were filed by the child's father, George Watson, Sr., in the circuit court of Jefferson County, against the doctor; and on December 6, 1961, these suits were dismissed. On December 21, 1961, new suits were filed in the circuit court of Jefferson County for damages for the personal injuries suffered by the child. One of such actions was filed by the father, as next friend of the injured infant. The father also filed a suit in his own behalf for loss of services. These two suits were against the doctor, who had written out the prescription and later used it in the child's eyes, and also, against the appellant drugstore where the prescription was filled.

On December 27, 1963, the drugstore, appellant, complainant below, filed a bill for declaratory judgment in the circuit court of Jefferson County, on the equity side, being the present case involved on this appeal, and joined as respondents the appellee Gulf Insurance Company, Dr. Anthony, the minor's father, George Watson, Sr., and the minor, George Watson, Jr. This being the same minor whose eyes were injured.

On December 27, 1963, the court enjoined the respondents, father and minor, from proceeding further with their actions for damages. Later, on motion, the temporary injunction was dissolved, and the minor's action went to trial and resulted in a $75,000 verdict on September 4, 1965, in favor of the minor against both the drugstore and the doctor.

On May 10, 1965, the drugstore, complainant-appellant, amended its complaint in the declaratory judgment action, and sought a temporary injunction against the collection of the $75,000 judgment; and, at such time, the same amended bill sought also the appointment of a new guardian ad litem to represent the interest of the minor, George Watson, Jr. (the original guardian ad litem having died), this being the same child whose eyes were injured. The date of this amendment was May 7, 1965. So, it is clear at this time the original guardian ad litem who had been appointed to represent the interest of the minor in this declaratory action was dead. On May 10, 1965, a temporary injunction, as requested by the complainant drugstore on its amended complaint, was granted to enjoin the collection of the $75,000 judgment pending a final decision in the declaratory judgment action. This declaratory judgment action being the action involved on this appeal.

On May 14, 1965, Gulf, appellee, filed a demand for a jury trial in the declaratory judgment action, and on May 17, 1965, the drugstore, complainant, filed a motion to strike the demand for a jury. The demand to strike a jury was overruled on May 20, 1965, this was at a time Prior to the appointment of the new guardian ad litem. The court, on May 31, 1965, appointed an able member of the Birmingham Bar as the new guardian ad litem to take the place of the one deceased. This guardian ad litem, of course, being appointed to look after the interest of the minor who had been made a respondent in the declaratory judgment proceeding.

Here is the proper place to point out that at the time the complaint was first filed making the minor a respondent, on December 27, 1963, the proper person to defend the minor, under the circumstances set out in the complaint seeking a declaratory judgment, was a guardian ad litem, and the court appointed one. Code of Alabama 1958 (Recompiled), Title 7, § 102.

We deem it unnecessary for a proper decision of this case to go into further details concerning the actions of the respective parties, as to proceedings and procedure, in the declaratory judgment action below, other than to point out that after the death of the first guardian ad litem, and Before the appointment of a new guardian ad litem, several actions or proceedings occurred in the trial court in the declaratory judgment actions and proceedings. While the minor respondent (the holder of the $75,000 judgment) had no guardian ad litem, (a) an amendment to the bill of complaint was filed; (b) an amended answer by Gulf; (c) a hearing with reference to setting the cause on a temporary restraining injunction; (d) an order granting a temporary injunction; (e) a jury demand was filed by Gulf; (f) a motion to strike a jury demand was filed by complainant drugstore; (g) following a hearing, the trial court rendered a decree overruling the motion to strike a jury demand; (h) also, an order for the determination of the issues to be submitted to the jury, and the setting of the case for trial on June 9, 1965, took place. At such times the minor respondent was from a legal aspect 'voiceless' for the new guardian ad litem, Waldrop Windham, appointed by order dated May 31, 1965, made his first appearance on June 9, 1965 in open court, and we might add that the able guardian ad litem for the minor, in his assignments of error and cross-assignments of error, complained in assignments Nos. 1--4 of proceedings that happened before the court appointed the guardian ad litem.

This precise issue of 'no guardian ad litem' may not have been raised specifically by the minor in his petition for review of the verdict of the jury in the trial court, but we hold some of his assignments of error, in the review hearing, were broad enough to include this issue. However, even in the absence of such an assignment, in the review before the trial court, under the authority of Pritchett v. Dixon, 222 Ala. 597, 133 So. 283, this court must notice ex mero motu the irregularity of the absence of a guardian ad litem for the infant who was made a party respondent in the proceedings before the trial court. Hall v. Hall, ...