Fidelity & Cas. Co. v. Bank of Commerce

• Decision Date: 30 April 1970
• Docket Number: 4 Div. 284
• Parties: The FIDELITY AND CASUALTY COMPANY v. BANK OF COMMERCE.
• Court: Alabama Supreme Court

Page 871

234 So.2d 871

285 Ala. 580

The FIDELITY AND CASUALTY COMPANY v. BANK OF COMMERCE.

4 Div. 284.

Supreme Court of Alabama.

April 30, 1970.

Frank Samples, Phenix City, Rushton, Stakely & Johnson, and N. T. Braswell, III, Montgomery, for appellant.

Jere L. Beasley, Clayton, for appellee.

LAWSON, Justice.

This suit was brought by Bank of Commerce, Clayton, Alabama, against the Fidelity and Casualty Company of New York to recover a loss which the Bank suffered as a result of a financial transaction which it had on January 17, 1964, with an authorized representative of Robert M. Davis, who did business as Eileen Sportswear Company.

Liability is based on a 'Bankers Blanket Bond, Standard Form No. 24,' in the amount of $180,000 issued by the Fidelity and Casualty Company to the Bank, which bond was in effect on January 17, 1964.

The jury returned a verdict which reads: 'We the jury find for the Plaintiff and assess its damages at $4,519.00 plus $660.31 interest or a total of $5,179.31.' The trial court, in accordance with the jury's verdict, rendered a judgment in favor of the Bank and against the Fidelity and Casualty Company in the sum of $5,179.31.

After its motion for new trial was denied, the Fedelity and Casualty Company appealed to this court.

Motion to Dismiss Appeal

The Bank, the appellee, moves that the appeal be dismissed on the ground that the transcrip of the record shows that there was no citation of appeal served on the Bank or on its attorney.

The transcript of the record which was originally filed in this court did not show that citation of appeal had been properly served on appellee or its attorney. But a supplemental transcript was filed here showing that citation of appeal was duly served on appellee's attorney approximately seven months before submission was had in this court on brief and argument. No injury or inconvenience to appellee is shown. It follows that the motion to dismiss the appeal must be denied. It is so ordered. Benson-Jackson-Mathers Post No. 5106 v. Donaldson, 267 Ala. 60, 99 So.2d 688, and cases cited.

Merits

The cause went to the jury on Counts One, Two and Four of the plaintiff's amended complaint and on the defendant's plea of the general issue in short by consent with leave etc.

Appellant, the defendant below, argues its assignments of error to the effect that the trial court erred in refusing to give written affirmative charges in its favor which it requested as to Counts One, Two and Four and as to the complaint as a whole.

Appellee says that the trial court cannot be put in error in refusing the affirmative instructions requested by appellant because they are in improper form, not being based on the jury's belief of the evidence. In other words, the charges refused are affirmative charges without hypothesis. Appellee asserts that where the evidence is solely from witnesses on the side of the party holding the burden of proof, an affirmative instruction must be with hypothesis, such as, 'if the jury believe the evidence.' White v. State ex rel. Fowler, 262 Ala. 694, 81 So.2d 267, cited by appellee, supports that assertion.

But the holding in the White case, supra, has no application here because the burden of proof was on appellee, the plaintiff below. In Western Ry. of Ala. v. Brown, 280 Ala. 543, 548, 196 So.2d 392, it was observed: 'It is elementary that the burden is upon the plaintiff to prove her complaint where the general issue is pleaded.'

The holding of our cases is to the effect that when the party having the burden of proof fails to adduce evidence to support the cause of action or defense, or his witnesses' testimony without conflict makes out a case for the opposing side, the trial court, on request in writing, may give the affirmative charge without hypothesis. White v. State, Supra; Harris v. State, 215 Ala. 56, 109 So. 291; Anniston Soil Pipe Co. v. Central Foundry Co., 275 Ala. 545, 156 So.2d 637.

Appellee further argues that since appellant's trial attorney expressed satisfaction with the trial court's oral charge, the appellant cannot on this appeal assert error on the part of the trial court in refusing the affirmative charges on grounds which appellee says are in conflict with the oral instructions of the trial court, in that parties are restricted to the theory on which the cause is prosecuted and defended in the court below. In Inter-Ocean Insurance Co. v. Banks, 268 Ala. 25, 27, 104 So.2d 836, cited by appellee, we said in part:

'* * * It is a well-settled rule that parties are restricted to the theory on which a cause is prosecuted or defended in the court below. Where both parties adopt a particular theory they will not be permitted to depart therefrom when the case is brought up for appellate review. (Authorities cited) Change of counsel does not change the rule. * * *'

In Inter-Ocean Insurance Company v. Banks, Supra, counsel for both parties stipulated that the only question for the court to determine was whether the insurance policy sued on was in force and effect on the date the plaintiff was accidentally injured and the trial was so conducted.

In this case there was no stipulation. Although the appellant, the defendant below, rested without putting on any testimony after the plaintiff below had rested, it is apparent, from the cross-examination of the witnesses called by the plaintiff below, by the attorney for the defendant below, that the theories on which the appellant claims the trial court erred in refusing the affirmative instructions are the theories on which it rested its defense in the trial court.

No case has been cited and we have found none which holds that where counsel for a party fails to object to a trial court's oral charge or expresses satisfaction therewith, that party cannot on appeal assert error in the refusal of a requested written affirmative instruction, even though the oral charge may in some respects be erroneous.

In determining the propriety of a general affirmative charge when requested by the defendant, the evidence most favorable to the plaintiff must be accepted as true. Purity Ice Co., Inc., v. Triplett, 257 Ala. 116, 57 So.2d 540; Key v. Dozier, 252 Ala. 631, 42 So.2d 254.

Accordingly, tendencies of the evidence most favorable to the plaintiff will be stated, much of which evidence is without dispute.

In 1963 and 1964, Robert M. Davis was the sole owner of manufacturing plants in Midway and Louisville known as Eileen Sportswear Company. That company sold manufactured products to Winer Sportswear Inc., of Paterson, New Jersey.

Davis was short of money with which to meet his pay roll and other operating expenses while awaiting payment by Winer for merchandise shipped to it. In order to obtain funds with which to meet his pay roll and to pay other expenses while awaiting payment from Winer, Davis worked out an arrangement with the President of the Bank of Commerce whereby, when merchandise was shipped to Winer, Davis would present to the Bank a copy of a packing slip and a copy of an invoice. Davis would execute a note to the Bank, to which would be attached copies of packing slips and invoice. Winer agreed, upon receipt and acceptance of the merchandise from Eileen Sportswear Company, to send a check to the Bank payable to the Bank and Eileen Sportswear Company in the amount shown on the invoice to be due.

On January 17, 1964 Eileen Sportswear Company needed money. Davis was in Atlanta. He called his manager, John M. Scott, usually referred to as Max Scott, and told him to prepare two packing slips. The evidence is in conflict as to exactly what instructions Davis gave Scott on that occasion. Davis testified that he told Scott to make up packing slips, 'for the amount of money we needed to cover the pay roll,' and gave him the style numbers to use because 'it would make the thing look a little more legitimate,' but that Scott itemized the merchandise himself. On the other hand, Scott testified that in the telephone conversation Davis gave him all the information to include in the packing slips; that he did not 'come up' with the figures, lots and styles. We interpret appellee's brief as showing that it considers Scott's version of the telephone conversation and of his actions to be more favorable to it, so we will consider Scott's version as being correct.

After the telephone conversation, Scott prepared two packing slips which he signed, 'Max Scott.' One of those slips was dated January 10, 1964, and the other January 15, 1964. Both indicated that the merchandise described thereon had been shipped by truck to Winer. An invoice was prepared, but the evidence does not show by whom. It bears the date of January 17, 1964, and on its face represents that merchandise of the kind and in the amount shown by the two packing slips had been sold and shipped by Eileen Sportswear Company to Winer for the sum of $5,649.38. The invoice bears the notation: 'Please make check to Eileen and Bank of Commerce.'

On January 17, 1964, Mrs. Eileen Davis, the wife of Robert M. Davis, took copies of the packing slips and copy of the invoice to the Bank. She presented those instruments to the President of the Bank and obtained from the Bank the sum of $4,519 upon the execution of a note to the Bank for that amount. The note was signed, 'Eileen Sportswear Co., by Eileen C. Davis.' Her right to bind Eileen Sportswear Company and her husband is admitted.

The Bank usually received payment in transactions of this kind within sixty to ninety days from date of shipment. When it did not receive a check from Winer within that period of time, it contacted Winer and was later advised by Winer that it had not received the merchandise represented by the packing slips and the invoice dated January 17, 1964, and Winer further advised the Bank that the invoice of January 17, 1964, was a duplicate of a previous invoice. When contacted by the Bank, Davis admitted that the packing slips and invoice were...