Fidelity & Casualty Co. of New York v. Raborn

• Decision Date: 12 January 1937
• Docket Number: 1 Div. 275
• Citation: 173 So. 399,27 Ala.App. 367
• Court: Alabama Court of Appeals
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. RABORN.

173 So. 399

27 Ala.App. 367

FIDELITY & CASUALTY CO. OF NEW YORK v. RABORN.

1 Div. 275

Court of Appeals of Alabama

January 12, 1937

Rehearing Denied Feb. 2, 1937

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Assumpsit by the Fidelity & Casualty Company of New York against William Raborn. From a judgment granting defendant's motion for a new trial following verdict on affirmative charge for plaintiff, plaintiff appeals.

Affirmed.

Certiorari denied by Supreme Court in Fidelity & Casualty Co. of N.Y. v. Raborn, 173 So. 402.

Gordon Edington & Leigh, of Mobile, for appellant.

W.C. Taylor and Smith & Johnston, all of Mobile, for appellee.

SAMFORD Judge.

The action in this case was grounded upon a contract of indemnity entered into between William Raborn, the defendant, and Fidelity & Casualty Company of New York, the plaintiff wherein the defendant agreed to indemnify the plaintiff against loss by reason of the plaintiff becoming surety for J.C. Campbell and W.J. McCowan, doing business under the firm name of Consolidated Warehouse, said bond running in favor of the Commissioner of Agriculture and Industries of the State of Alabama, and being a statutory bond for the benefit of any person or persons injured by reason of the failure or default of the said Campbell or McCowan.

The complaint was in two counts and, as we see it, sufficiently stated the cause of action and was not subject to any ground of demurrer interposed thereto. Code 1923, § 9531, subd. 7; Kilgore v. Kimbrell, 231 Ala. 148, 163 So. 896; National Surety Co. v. Citizens' L.H. & P. Co., 201 Ala. 456, 78 So. 834.

We have also examined the various pleas filed by the defendant and the demurrers interposed thereto and, without going into a full discussion of the various grounds assigned, we are of the opinion that the trial court committed no error in sustaining these demurrers for the reason, if for no other, that there was no allegation showing that any notice was given to an agent of the plaintiff having authority to cancel the bond, nor to such general agent as would constitute a notice to the plaintiff, as is required by Agricultural Code of Alabama, §§ 398-400, inclusive, see Acts 1927, p. 60. Issue was then joined on the general issue and the plaintiff introduced in evidence its bond to the State of Alabama, as authorized by the Agricultural Code of the State, Acts 1927, guaranteeing the good faith of the Consolidated Warehouse as principal in said bond, dated the 28th day of November, 1932. This bond was properly approved by the Commissioner of Agriculture and recorded as required by law. The plaintiff then introduced, over the objection and exception of the defendant, a contract of indemnity executed the 28th day of November, 1932, by and between William Raborn, this defendant, and the Fidelity & Casualty Company of New York, this plaintiff. In said contract of indemnity there is no sufficient description of the bond of the Consolidated Warehouse secured by the plaintiff, but, as a part of said contract of indemnity, there appears this clause: "Whereas at the special instance and request of the Indemnitor and on the security of this agreement, the Company is or is to become surety for J.C. Campbell & W.G. McCowan D/B The Consolidated Warehouse of Mobile, Ala., on a certain bond running in favor of Commissioner of Agriculture & Industries--State of Alabama, a copy of which is attached hereto and made a part hereof." But no copy of any bond was physically attached to the contract of indemnity.

Upon proof of loss on the part of the plaintiff, under its bond given to the State of Alabama and hereinabove referred to and without any proof of further connection between the two bonds, the trial court, at the request of the plaintiff in writing, gave to the jury the general affirmative charge in its behalf. Whereupon the jury returned a verdict in favor of the plaintiff and against the defendant for the amount of damages, and judgment was entered thereon. Subsequent to this judgment, the defendant made its motion for a new trial, assigning numerous rulings of the court which we do not consider necessary to mention other than as the same applies to the ruling regarding the contract of indemnity hereinabove...