Gulf Am. Fire & Cas. Co. v. Johnson

• Decision Date: 11 April 1968
• Docket Number: 8 Div. 211
• Citation: 282 Ala. 73,209 So.2d 212
• Parties: GULF AMERICAN FIRE AND CASUALTY CO. v. Sidney JOHNSON.
• Court: Alabama Supreme Court

Page 212

209 So.2d 212

282 Ala. 73

GULF AMERICAN FIRE AND CASUALTY CO. v. Sidney JOHNSON.

8 Div. 211.

Supreme Court of Alabama.

April 11, 1968.

Dawson & McGinty, Scottsboro, for appellant.

Campbell & Campbell, Scottsboro, for appellee.

COLEMAN, Justice.

Defendant appeals from judgment for plaintiff in an action tried by jury, for money received by defendant to the use of the plaintiff.

The complaint contains one count which recites:

'The plaintiff claims of the defendant TWELVE HUNDRED AND NO/100 DOLLARS ($1200.00), for money on the 19 day of December, 1959, received by the defendant to the use of the plaintiff, which sum of money, with the interest thereon, is still unpaid.'

Defendant filed five pleas. Pleas 1, 2, and 3 are pleas of the general issue. Pleas 4 and 5 undertake to set up the defense of Res judicata. ¹

We find no demurrer to any of the pleas. Immediately following the pleas, on three pages of the record, there appears an instrument which the parties call an 'agreed statement of fact.' This instrument is signed by attorneys for plaintiff and by the attorney for defendant.

In substance, the agreed statement recites that plaintiff owned forty acres of land on which was a dwelling house; plaintiff executed a mortgage on the land; defendant insured the house against loss by fire for $1,200.00; the policy contained a mortgage clause to effect that in case of loss of house by fire, the proceeds of the policy should be paid to mortgagee; plaintiff made no payment on the mortgage debt; the policy was in effect on a day when the house was destroyed by fire; the policy provided that defendant shall not be liable for loss occurring while the hazard is increased by means within control or knowledge of insured or while house is vacant or unoccupied for sixty consecutive days; the policy further provided that if defendant shall claim that no liability existed, defendant shall, to the extent of payment of loss, be subrogated to mortgagee's rights of recovery, or, defendant may pay off the mortgage debt and require an assignment thereof and of the mortgage; defendant denied liability to plaintiff on grounds that hazard was increased or the house had been vacant sixty days; defendant paid to mortgagee $1,432.80, the amount of mortgage debt, and the mortgagee transferred the mortgage and debt to defendant; defendant foreclosed the mortgage and bought in the land for $1,703.01, which was the amount of mortgage debt plus foreclosure costs; defendant sold the land to E. E. Mitchell for $1,200.00; plaintiff subsequently filed suit against defendant on the policy; defendant filed pleas, in one of which defendant alleged that the policy contained the mortgage clause above referred to, and further alleged that defendant had paid the proceeds of the policy to mortgagee, prior to commencement of the first suit, and that defendant had thereby discharged defendant's liability under the policy; plaintiff confessed said plea and judgment was entered thereon in favor of defendant and against plaintiff; the only money defendant had received in connection with the transaction was the $1,200.00 which defendant received from E. E. Mitchell as purchase price for the property defendant sold to him.

The agreed statement of facts commences:

'This cause is hereby submitted to the Court for a judgment by the Court on agreed statement of facts without the intervention of a jury.';

and concludes:

'A true copy of the policy is attached to this agreed statement of fact.

'To this action the defendant filed several pleas, some of which set up and plead res judicata and this cause is submitted to the Court on this agreed statement of facts for the Court to determine if said plea is a good plea and defense to this action for money had and received.'

The next thing in the record is an order of the court which recites certain matters considered by the court and concludes as follows:

'It is therefore, Ordered, Considered and Adjudged by the Court that defendant's plea in bar in this case be and the same is hereby overruled, and the plaintiff is allowed to proceed to trial on the original bill of complaint and on defendant's plea of general issue and such other pleas as defendant may file within twenty (20) days from the date of this Order.'

The transcript of evidence on the trial by the jury next appears in the record. In the trial by jury, plaintiff offered in evidence the agreed statement of facts, but defendant objected and the court sustained the objection.

1.

Defendant assigns for error and argues that the trial court erred in 'overruling defendant's plea (4).'

We are not familiar with or advised of any authorized procedure in this state whereby, in an action at law, a court can 'overrule a plea' which has been submitted to the court together with an agreed statement of facts.

As already stated, we do not find in the record any demurrer to the pleas. This court has said that demurrer, and not motion to strike, is the appropriate method of testing the sufficiency of pleas. Logan v. O'Barr,271 Ala. 94, 97, 122 So.2d 376. We hold, in the instant case, that demurrer is the proper way to test the sufficiency of defendant's plea 4.

In Alabama and Florida R. Co. v. Watson, 42 Ala. 74, in an action at law, the parties agreed that defendant's demurrer to the complaint was to be deemed as duly filed and every ground of demurrer which should legally be set down or specified was to be deemed as duly set down and specified. The trial court overruled the demurrer. On appeal, Byrd, J., quoted the statute, which is now § 236 of Title 7, and said:

'. . .. The demurrer, which the appellant sought to interpose, does not conform to the requirements of the statute, and I am not aware of any authority to sustain the proposition that the agreement of counsel can render nugatory a statutory prohibition which was intended to control the action of the court.

'Again, the record does not inform us what were the points of objection raised in the argument in the court below. And in the absence of any information on the subject, I must presume in favor of the ruling of the court, that no valid ground of demurrer was specified in the argument; and if none were, we should not reverse the case, even if there had been a good one which might have been specified. . . ..' (42 Ala. at page 77)

There is no demurrer to the pleas at all in the case at bar. While Watson is not on all fours with the instant case, we think the following rule stated by Byrd, J., applies here, to wit:

'. . .. If parties desire their causes reviewed they must proceed according to law and the rules of the court to try them, and not under agreements which depart from the provisions of law regulating the trial of causes. . . ..' (42 Ala. at page 78)

Under that rule, we will not reverse the trial court for 'overruling' defendant's plea 4 in the instant case.

2.

Defendant asserts that the court erred in refusing affirmative charges requested in writing by defendant. We hold that refusal of these charges constituted error to reverse.

Defendant contends that the evidence introduced on the trial before the jury established, without dispute, that the judgment in the prior action was res judicata and conclusive against plaintiff on the same cause of action on which plaintiff sues in the instant case, and, therefore, that defendant was entitled to affirmative instructions.

In earlier cases, this court held that the record of a prior adjudication could be given in evidence under a plea of the general issue, or general denial, with the same effect as if the prior adjudication had been pleaded specially. Cook v. Field, 3 Ala. 53; Wittick v. Traun, 25 Ala. 317; Cannon v. Brame, 45 Ala. 262; Haas v. Taylor, 80 Ala, 459, 2 So. 633. Later cases appear to hold that under § 225 of Title 7, Code 1940, res judicata must, as a general rule, be specially pleaded in order to be available to defendant, although it may appear in the evidence. Jones & Co. v. Peebles, 130 Ala. 269, 30 So. 564; Winkles v. Powell, 173 Ala. 46, 55 So. 536; Cox v. Brown, 198 Ala. 638, 73 So. 964; Dancy v. Ratliff, 201 Ala. 162, 77 So. 688; Chattanooga Brewing Co. v. Smith, 3 Ala.App. 565, 58 So. 67.

This court, however, has recognized an exception to the general rule where the plaintiff proved when a witness, without objection or limitation at the time, the prior judgment for the same cause of action and the satisfaction of the same. This court said that '* * * this should operate as a waiver of the defendants' failure to plead the same specially.' Jones v. Russell, 206 Ala. 215, 219, 89 So. 660, 663. See: Cawthon v. Jones, 216 Ala. 260, 113 So. 231; Johnson v. Odom, 11 Ala.App. 364, 66 So. 853. For helpful annotation on 'Pleading waiver, estoppel, and res judicata,' see 120 A.L.R. 8.

On the trial before the jury, the instant plaintiff introduced into evidence interrogatories which proved issuance of fire insurance policy by defendant, the payment by defendant to mortgagee and the assignment of mortgage to defendant, foreclosure of mortgage and purchase by defendant, and sale by defendant to E. E. Mitchell for $1,200.00; all as stated in the agreed statement of fact above set out.

Plaintiff then introduced into evidence the entire file in the prior action. The file shows that plaintiff sued defendant for breach of fire insurance policy, that defendant pleaded payment to the mortgagee, that defendant confessed the plea, and judgment for defendant; all prior to commencement of instant suit.

We hold that plaintiff, by introducing the file in the prior action, waived defendant's failure to plead specially and that the prior judgment is available to defendant in bar of the instant action under the doctrine of res judicata.

This court has said:

'. . .. In civil cases the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, and as evidence, conclusive, between the same parties upon the...