Ex parte Bahakel

• Decision Date: 29 March 1945
• Docket Number: 6 Div. 331.
• Citation: 21 So.2d 619,246 Ala. 527
• Parties: Ex parte BAHAKEL et al.
• Court: Alabama Supreme Court

21 So.2d 619

246 Ala. 527

Ex parte BAHAKEL et al.

6 Div. 331.

Supreme Court of Alabama

March 29, 1945

Hugh A. Locke and Wade H. Morton, both of Birmingham, for petitioners.

Lange Simpson, Brantley & Robinson, of Birmingham, for respondent.

GARDNER Chief Justice.

There is pending in the Circuit Court of Jefferson County a suit by Alfred and William Bahakel, doing business as the Bahakel Produce Company, against the Great Southern Trucking Company seeking damages alleged to have been caused by a collision of plaintiff's automobile truck and trailer with the truck operated by the defendant.

Certain written interrogatories were propounded by the plaintiffs to the defendant, as authorized by Sec. 477 et seq., Title 7, Code 1940. Plaintiffs, being dissatisfied with the answers to Interrogatories 10, 11, and 11(a), applied to the trial judge for an order requiring that the defendant more fully and completely make answer thereto. Upon due consideration the trial judge denied the motion, and plaintiffs have sought a review of this ruling in this proceeding.

That the appropriate remedy by mandamus has been pursued for a review of this ruling is not questioned. Ex parte Nolen, 223 Ala. 213, 135 So. 337.

Of course, the general rule applies in this as in all other cases, that the extraordinary remedy of mandamus is to be granted only when there is a clear, specific, legal right shown, for the enforcement of which there is no other adequate remedy. Smith v. McQueen, 232 Ala. 90, 166 So. 788; Hawkins v. Pure Oil Co., 232 Ala. 660, 169 So. 307.

And in cases of this character--that is where the trial court denies the motion to require an answer--we have said that mandamus will be awarded to compel him to do so unless it appears that the evidence sought is patently objectionable and inadmissible. Ex parte Farrell, 234 Ala. 498, 175 So. 277.

The trial judge has filed a complete answer, giving his reasons for denying the motion, with citation of applicable authorities, all of which has proven helpful in our study of the cause. The answer makes it clear that the primary purpose of these interrogatories, particularly Nos. 11 and 11(a), is to have the defendant, as a common carrier, disclose in the pending suit the surety bond or securities on file, as provided in Gen.Acts 1939, p. 1076, now appearing as Sec 301(16), Title 48, 1943 Cumulative Pocket Part, Code 1940.

But it has been here determined that under the provisions of what is known as the Motor Carrier Act of 1939, Code 1940, Tit. 48, § 301(1) et seq., the surety cannot be joined in a suit against the carrier. Baggett v. Jackson, 244 Ala. 404, 13 So.2d 572. And under the general rule, therefore, proof concerning any such suretyship would be incompetent and inadmissible in the trial of this cause. There are exceptions, as illustrated in Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757; and Luquire Ins. Co. v. McCalla, 244 Ala. 479, 13 So.2d 865, where the matter of insurance may become material if defendant insists the employee was not in fact his servant or agent but an independent contractor. But any such question is eliminated in this case, as the answer discloses that defendant has stipulated of record that its motor vehicle involved in the collision in this suit was being operated at the time of the accident by its servant, acting within the line and scope of his employment. It thus appears, therefore, that this case presents no exception to the general rule.

But counsel for petitioners seem to lay some stress upon the statement, as found in the opinion of Baggett v. Jackson supra, that the injured party's right against the insurer under the Act of 1939 is primary and not derivative. So it is. But the liability does not arise on the part of the insurer until a judgment is rendered against the carrier. We held in the Baggett case that...