Federal Automobile Ins. Ass'n v. Meyers

• Decision Date: 20 December 1928
• Docket Number: 6 Div. 988
• Parties: FEDERAL AUTOMOBILE INS. ASS'N et al. v. MEYERS.
• Court: Alabama Supreme Court

119 So. 230

218 Ala. 520

FEDERAL AUTOMOBILE INS. ASS'N et al. v. MEYERS.

6 Div. 988

Supreme Court of Alabama

December 20, 1928

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by F.E. Meyers against the Federal Automobile Insurance Association and Federal Underwriters, Incorporated. The court gave an affirmative charge for defendants, and from a judgment granting plaintiff's motion for a new trial defendants appeal. Affirmed.

London Yancey & Brower and Jim C. Smith, all of Birmingham, for appellants.

David J. Davis, of Birmingham, for appellee.

FOSTER J.

Appellee sued appellants in one count as follows: "The plaintiff claims of the defendant the sum of eleven hundred twenty-eight and 75/100 ($1,128.75) dollars with interest due on a policy of insurance whereby the defendant on to-wit April 9, 1925, agreed to indemnify the plaintiff against loss resulting directly from the manipulation or use of one Buick Roadster Model 1923 by reason of liability imposed by law upon the plaintiff for damages on account of bodily (including death resulting therefrom) accidental inflicted upon any person or persons not in the employ or household of the subscriber or related to him by blood or marriage and in addition agreed to pay the cost and expense attendant upon the investigation, adjustment and settlement of all claims, all cost taxed against the subscriber in any legal proceedings defended by the exchange and agreed to defend at its own cost in the name of and on the behalf of the subscriber suits for such damages during a period of one year from the date of the issuance of said policy of insurance; plaintiff avers that on to-wit, July 30, 1925, and while said policy was in full force and effect said automobile while being operated collided with Rosa Dryer and she later died, that Jake Dryer and Dan G. Trawick, Jr., as administrators of the estate of Rosa Dryer filed suit in the circuit court of Jefferson County, Alabama, against plaintiff charging that her death was due to negligence for which plaintiff was responsible; that plaintiff notified defendants of said suit and said defendants denied that they were liable on said policy and refused to defend him and plaintiff employed an attorney to defend said suit and finally settled said suit by permitting Jake Dryer and Dan G. Trawick, Jr., as administrators of the estate of Rosa Dryer to take a judgment for six hundred ($600.00) dollars and cost of twenty-eight and 75/100 dollars in compromise of said claim and plaintiff paid said judgment; and plaintiff avers that he has made demand upon the defendant for payment of the amount of said judgment, $628.75 and his reasonable attorney's fee in said matter and the defendants have failed and refused to pay same, hence this suit."

Defendant, appellant here, filed demurrer to the complaint, and the demurrer was overruled, and then filed several pleas setting up the general issue, and several separate defenses, only two of which need be mentioned: (1) That notice of the accident was not given as required by the contract, and (2) that appellee was not liable to the original plaintiff for that the injury was not done by an agent of appellee, and he voluntarily permitted a judgment against him. The court overruled demurrer to the defense numbered 1 above, and sustained demurrer to the defense numbered 2 above. Appellee then filed replication to defense No. 1 above, and issue was finally taken on replication 3, alleging a waiver of such notice. On the issue thus framed, the court gave the affirmative charge for defendant. On the trial appellant by cross-examination of appellee's witnesses brought our facts which it is claimed tend to show that the operator of the car causing the accident was not the agent of appellee, though the court had ruled on demurrer to the complaint, and on demurrer to pleas 10 and 11, that this did not constitute a defense. The bill of exceptions shows that when the court was considering the affirmative charge, after counsel had argued the case to the jury, the law in this aspect was again argued and considered by the court. Appellee did not offer evidence of such agency, but in reply to the argument of appellant's counsel contended that the evidence offered by appellant was sufficient on that question for the jury, and contended that, his witnesses having been excused, he could not then produce his proof on that issue. The court did not expressly assign any reason for giving the affirmative charge, but it followed the argument of appellant's counsel to the effect that the evidence did not show liability of appellee for the conduct of his son in causing the accident. On the replication of appellee to the pleas of want of notice, the evidence was sufficient for consideration by the jury. On motion for a new trial the court set aside the verdict and judgment, and defendant appeals, assigning for error such order.

Counsel for appellant have argued at great length the legal questions presented by his demurrer to the complaint...