Ex parte National Union Life Ins. Co.

• Decision Date: 19 May 1960
• Docket Number: 6 Div. 519
• Citation: 120 So.2d 686,270 Ala. 578
• Parties: Ex parte NATIONAL UNION LIFE INSURANCE COMPANY.
• Court: Alabama Supreme Court

Page 686

120 So.2d 686

270 Ala. 578

Ex parte NATIONAL UNION LIFE INSURANCE COMPANY.

6 Div. 519.

Supreme Court of Alabama.

May 19, 1960.

Henry Heller, Montgomery, and R. Macey Taylor, Birmingham, for petitioner.

Kingman Shelburne and W. E. Prescott, III, Birmingham, for respondent.

GOODWYN, Justice.

F. R. Ingram brought suit in the circuit court of Jefferson County against the National Union Life Insurance Company to recover damages for an alleged breach of contract. National Union moved to have the suit transferred to equity. Ingram's demurrer to the motion was sustained. National Union then filed here a petition for mandamus to be directed to the trial judge (Hon. J. Edgar Bowron) requiring him to set aside said order sustaining the demurrer and enter an order overruling the demurrer and transferring the cause to equity. Mandamus is the proper method of reviewing the trial court's action. Ex parte Metropolitan Life Insurance Co., 266 Ala. 551, 553, 98 So.2d 20; Ex parte Stember, 262 Ala. 56, 57, 77 So.2d 351; Cannady v. Jinright, 253 Ala. 341, 343, 44 So.2d 737; Ex parte R. A. Brown & Co., 240 Ala. 157, 160, 198 So. 138; Esslinger v. Spragins, 236 Ala. 508, 512, 183 So. 401; Jones v. Wright, 220 Ala. 406, 407, 125 So. 645; Ex parte Louisville & N. R. Co., 211 Ala. 531, 532, 100 So. 843.

The respondent has waived issuance of a rule nisi and has filed a demurrer to the petition and also an answer.

The essential and decisive question presented is whether the trial court erred in sustaining Ingram's demurrer. This depends upon whether the motion states the substance of an equitable right or defense available to National Union which should dispose of the cause and which cannot be disposed of in the law side of the court. Ingram's demurrer was the appropriate method of testing the sufficiency of the motion. Code 1940, Tit. 13, § 153; Ex parte R. A. Brown & Co., 240 Ala. 157, 160, 198 So. 138, supra.

We have held that 'in order to require a judge at law to transfer a cause to equity under authority of Title 13, section 153, Code, the motion must * * * withstand such test as if it were an original bill seeking equity.' Ex parte Metropolitan Life Insurance Co., 266 Ala. 551, 554, 98 So.2d 20, 21, supra; Ex parte Griffin, 243 Ala. 672, 11 So.2d 738; Ex parte R. A. Brown & Co., 240 Ala. 157, 198 So. 138, supra. It is our view that the motion does not meet such test.

The suit was originally brought against National Union and United Security Life Insurance Company. The original complaint consisted of Count 1. By amendments, United Security was stricken as a party defendant and the complaint was amended by striking Count 1 and adding Count 2. Count 2 is as follows:

'The Plaintiff claims of the Defendant One Hundred Thousand and no/100 ($100,000.00) Dollars damages for breach of contract for that, heretofore, to-wit:

'On November 1, 1954, and for more than twelve months prior thereto, the Plaintiff was employed by Service Life and Health Insurance Company with compensation fixed at ten (10) percentum of the gross receipts of Service Life and Health Insurance Company evidenced by copy of a General Agents Contract attached hereto and made a part hereof for all purposes, that on said date said General Agents Contract was transferred by the Plaintiff to National Union Life Insurance Company, a Corporation, in consideration of the promise on the part of National Union Life Insurance Company to pay to the Plaintiff remuneration based upon the premium receipts realized by National Union Life Insurance Company from the business transferred to National Union Life Insurance Company by Service Life and Health Insurance Company and from future increases of premium receipts realized by National Union Life Insurance Company from its Hospitalization Business in Alabama of not less than Two Hundred and no/100 ($200.00) Dollars per month beginning November 1, 1954, and continuing for the period of Plaintiff's lifetime but in no event less than eight (8) years, and said contract being a part of an agreement wherein and whereby Service Life and Health Insurance Company, a Corporation, reinsured and transferred to National Union Life Insurance Company all policies of insurance in force on the books of Service Life and Health Insurance Company on said date. Said agreements are in writing and executed under the seal of National Union Life Insurance Company and copies of same heretofore filed in this case are hereby made a part hereof for all purposes with the full legal effect as if same were herein set out in haec verba. National Union Life Insurance Company partly performed its obligations to F. R. Ingram under said contract by paying to F. R. Ingram the following:

$1,000.00 paid by National Union Life Insurance Company to F. R. Ingrain by check received by F. R. Ingram on June 9, 1955.

$2,500.00 paid by National Union Life Insurance Company to F. R. Ingram by check received by F. R. Ingram on October 6, 1955.

'The Plaintiff further alleges that although he has complied with all of its provisions on his part the Defendant has failed to comply with the following provisions thereof, viz: That the Defendant has failed to pay the Plaintiff the sum of, to-wit: Not less than $200.00 per month as agreed upon for each month beginning on the First day of November, 1955, to the First day of January, 1959, being thirty-nine (39) monthly installments altogether which became due prior to the filing of this suit, together with the interest thereon.'

We see no need to set out the several agreements referred to in and made a part of Count 2.

The original motion assigned the following as grounds for transferring the cause, to-wit:

'1. There is a different measure of liability, if any, for each of the defendants.

'2. The liability, if any, of the defendant National Union Life Insurance Company, is limited only by paragraph numbered 1 of the Agreement so-called between National Union Life Insurance Company and F. R. Ingram dated November 1, 1954, which is attached to the Complaint and made a part thereof as an exhibit. Whereas, the liability, if any, of the defendant, United Security Life Insurance Company is restricted and limited to those policies of insurance purchased by United Security Life Insurance Company from National Union Life Insurance Company on, to-wit, February 1, 1957.

'3. In the event any defendant is liable to the plaintiff, said defendant would be liable to the plaintiff in different amounts of money.

'4. For that the plaintiff comes into this Court with un-clean hands.

'5. For that the plaintiff, by his own conduct, has negatived the existence of any obligation between the plaintiff and the defendant.

'6. For that the Contract which is the basis for the plaintiff's claim is ultra vires.

'7. For that the Contract which is the basis for the plaintiff's claim is contrary to the public policy of the State...