General Mut. Ins. Co. v. Ginn

• Decision Date: 30 January 1969
• Docket Number: 7 Div. 746
• Citation: 218 So.2d 680,283 Ala. 470
• Parties: GENERAL MUTUAL INSURANCE COMPANY v. James Melvin GINN et al.
• Court: Alabama Supreme Court

Page 680

218 So.2d 680

283 Ala. 470

GENERAL MUTUAL INSURANCE COMPANY v. James Melvin GINN et al.

7 Div. 746.

Supreme Court of Alabama.

Jan. 30, 1969.

Mead, Norman & Fitzpatrick, Birmingham, for appellant.

John R. Phillips, Anniston, for appellees.

PER CURIAM.

Appellees moved this court to dismiss this appeal for the reason that the transcript was not filed within the time required by Supreme Court Rule 37, Title 7, Appendix, Recompiled Code 1958; also on the ground that the transcript was not filed in this court within ninety days from the date of the appeal, as provided by § 827(1a), Title 7, Recompiled Code 1958. See Act No. 886, § 2, General Acts 1951, Vol. II, p. 1527.

The record before us reveals that the instant appeal was perfected June 27, 1966, when the appeal bond was filed and approved. Ridgeway v. Lovelady, 268 Ala. 503, 108 So.2d 459; Parker v. Bedwell, 243 Ala. 221, 8 So.2d 893. The record further shows that it was filed here on October 19, 1966.

Between the date the appeal bond was taken and approved, namely, June 27, 1966, and October 19, 1966, when the record was here filed, the transcript of the evidence was filed by the Court Reporter with the Circuit Clerk. Such filing occurred on August 12, 1966. This was well within the sixty day limit after the appeal, as provided by Act 886, supra. See also § 827(1), Title 7, Recompiled Code 1958.

Appellant filed objections to the transcript on August 19, 1966. The trial court heard and sustained objections on August 24, 1966. On this date the transcript of the evidence was established. Colquett v. Williams, 264 Ala. 214, 86 So.2d 381.

We here note that § 1 of Act 886, supra, Title 7, § 827(1), Recompiled Code 1958, provides that the reporter's transcribed evidence in cases at law, including objections, oral motions, rulings of the court, and the oral charge of the court shall be certified by the Court Reporter and filed with the Clerk, and the evidence so transcribed and certified shall be a Part of the record.

Our amended Rule 37, Title 7, Code 1940, Appendix, supra, 263 Ala. XXI, provides that the transcript of the record shall be filed in the Supreme Court within sixty days after the transcript of the evidence has been established in the trial court, but subject to an extension of time.

It appears that the record was here filed within the sixty days after the transcript of the evidence was established. Therefore, the motion of appellees to dismiss the appeal for failure to file the record here within the time required by law is denied.

On the Merits

Appellant complains that the trial court erred in overruling its demurrer to the complaint as amended. The amended complaint consists of Count Two.

The demurrer contains eleven grounds, but only one ground, that the allegations (of Count Two) are vague, indefinite and uncertain, is argued. The other grounds, not being here argued, are waived. Howard v. Stewart, 252 Ala. 581, 42 So.2d 252; Ala.Dig., Vol. 2A, Appeal and Error, k1078(3). This argued ground is general and subject to § 236, Title 7, Code 1940 as Recompiled in 1958. The demurrer on this ground was properly overruled. United States Health & Accident Ins. Co. v. Goin, 197 Ala. 584, 73 So. 117; Denson v. Caddell, 201 Ala. 194, 77 So. 720; Ala.Dig., Pleading, Vol. 16, k208.

We might observe with respect to the right of the mortgagee, who is the beneficiary under a loss payable claim, to join with the assured, who is the mortgagor, as parties plaintiff to collect indemnity insurance covering the theft of an automobile, that such procedure has been approved in Aetna Ins. Co. v. Koonce, 233 Ala. 265, 267, 171 So. 269, 271. We there said:

'The insurer is primarily interested in protection against double liability; the mortgagee in getting what is due him when the loss is paid; the mortgagor in getting the entire loss paid.

'This can all be readily accomplished by a joint action of the mortgagor and the mortgagee on the policy. The court, when the money is paid in, has full power, if need be, to apportion it between the plaintiffs.

'Other courts have been confronted with cases under like or kindred policies, and have not always been in harmony as to the right of mortgagor or mortgagee to sue, where each was due a portion of the indemnity. But their right to sue jointly is generally recognized, and so far as we have found, not denied in any jurisdiction.

'For full citation and review of authorities, see 8 Couch, Cyclopedia of Insurance Law, § 2081; also, sections 2051, 2052; 26 C.J. pp. 484, 485.

'We now approve the rule sustaining a joint action. Under our statutes, the right to sue jointly, in the first instance, warrants bringing in the mortgagee as coplaintiff by amendment; such amendment relating back to the bringing of the suit. Code, § 9513; Birmingham Gas Co. v. Sanford et ux., 226 Ala. 129, 145 So. 485.'

The second assignment of error charges the trial court with error for having given plaintiff's requested written Charge 4, which is:

'I charge you gentlemen of the jury that where an insurance agent for the defendants does not ask questions of insured, but writes answers as though he had done so, the insurer defendant cannot deny coverage on such basis.'

We are unable to say from appellant's brief wherein this abstract charge was prejudicial to appellant. Counsel for appellant argues and quotes certain abstract principles of law which it contends negate the correctness of this written Charge 4, supra, but nowhere in the argument addressed to this Charge 4, supra, does the brief pretend to point out the evidence which induced or motivated the request for this charge. Appellant's argument with respect to this charge is abstract. We are not under any duty to cast about in the record for evidence pertaining to this charge. We are unwilling to say that the charge was an incorrect statement of law in its application to the evidence. It was held to be correct in United Security Life Ins. Co. v. St. Clair, 41 Ala.App. 243, 130 So.2d 213. We are not convinced from the argument that it was not correct in the present case.

Assignment of Error III asserts that the trial court erred in refusing appellant's written charge No. 1 as follows:

'I charge you that in the event you should find your verdict for Plaintiffs you cannot award them more than a sum equal the premium charged for issuance of the policy of insurance sued on $29.75.'

The effect of this charge was to instruct the jury that plaintiffs were not entitled to recover anything except the insurance premium paid.

Again appellant's argument in support of this assignment is abstract and fails to point out the evidence with sufficient clarity. The argument is more in the nature of a casual reference to Clause 18 of the policy and does not set forth any argument in support of the assignment. For that reason we will not consider this assignment.

Under Assignment of Error IV appellant charges error by the court in refusing the affirmative charge with hypothesis. We do not think that the appellant has presented a serious argument that this affirmative charge should have been given. We will not consider this assignment.

At this point we think pertinent evidence and the tendencies thereof should be narrated.

A (used car) partnership composed of James Melvin Ginn (one of the plaintiffs) and Odell Spurlin, operating as Ginn & Spurlin, bought from one Foster a 1963 white Chevrolet Impala convertible and paid therefor $1,675 plus a used Ford. The newly purchased Chevrolet had attached or welded to the door frame an identification or serial number 31867A120071; also it bore a license plate No. 11--28003 for the year 1964.

It also appears that this identification plate bearing the serial number and the license plate were removed from a wrecked 1963 Chevrolet Impala convertible which had been sold for junk. This wrecked automobile had originally been sold to one Gene Noell.

The purchasers, Ginn & Spurlin, financed the cash purchase price of the Chevrolet with money borrowed from the Commercial National Bank of Anniston, which took a promissory note for the money and a chattel mortgage on the car. These instruments were executed by the partnership and by the partners as individuals. The car was described in the mortgage as a 1963 Chevrolet Impala convertible, serial number 31867A120071.

Thereafter, G. B. Daniell Realty Company, through G. B. Daniell, was importuned by Mr. Guice Potter, Jr., an officer of the bank, to insure the car against loss by fire and other hazards. This contact was through the suggestion of Mr. Ginn, who had other insurance with this agency. Mr. Daniell testified that information inserted in the application for insurance was furnished over the telephone by Mr Ginn. The witness, Mr. Daniell, signed the application blank for Mr. Ginn.

It further appears that the wrecked Chevrolet from which the serial plate and the license tag were removed originally belonged to a Mr. Noell, who owned the same when it was wrecked. He delivered the wrecked automobile to an adjuster, who in turn sold and delivered it, with serial plate and tag license attached, to a Mr. Haynes, who sold the motor from the wrecked automobile to another person and left the remainder of the car in his yard.

A Mr. Gunn testified that a Mr. Nelson approached him about buying a 1963 Chevrolet Impala convertible, but he did not buy the same. He did undertake to sell it at an auction sale for Mr. Foster, whom he had known for several years. The sale was not made. In undertaking to sell the car, he procured a transfer of the license plate on the automobile from a Mr. Noell to himself. He redelivered the unsold automobile to Mr. Foster and gave him the 'registration tag in my name.' He further testified that he was a mechanic and had done some work for Mr. Foster.

Appellant places heavy reliance upon the fifth Assignment of Error, which charges that the trial court erred in refusing written Charge No. 3 ...