Hill v. Kraft, Inc.

• Decision Date: 03 October 1986
• Citation: 496 So.2d 768
• Parties: Craig HILL v. KRAFT, INC., a Corporation, et al. 85-649.
• Court: Alabama Supreme Court

Page 768

496 So.2d 768

Craig HILL v. KRAFT, INC., a Corporation, et al.

85-649.

Supreme Court of Alabama.

Oct. 3, 1986.

James M. Prestwood of Prestwood, Prestwood & Jazwinski, Andalusia, for appellant.

W.H. Albritton IV of Albrittons, Givhan & Clifton, Andalusia, for appellees.

HOUSTON, Justice.

This is an appeal from a judgment of dismissal.

Nothing was considered by the trial court but the complaint and the motion to dismiss. The motion was not treated as a motion for summary judgment with all parties given an opportunity to present all pertinent material in accordance with the last provision of Rule 12(c), Ala.R.Civ.P. Therefore, this Court must test the action of the trial court under the standard of review applicable to a dismissal under Rule 12(b)(6). Roberts v. Meeks, 397 So.2d 111 (Ala.1981).

Motions to dismiss should be granted sparingly, and a dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. Garrett v. Gilley, 488 So.2d 1360 (Ala.1986).

In the first count Craig Hill prayed for the following relief:

"That Defendants be required to account to this Plaintiff for their handling of each item of business pertaining to this Plaintiff and to Plaintiff's rights not only under the insurance contract that afforded some payment of Plaintiff's expenses but a complete revelation and accounting of the settlement to the Civil Action styled: Frank Fenton and Irma Jean Fenton, Plaintiffs vs. Joseph C. Hill and Kraft, Inc., Defendants, Case No. 14,757, In the Circuit Court of Lowndes County, Mississippi. Plaintiff is one and the same person as Joseph C. Hill."

In the second count it was alleged: "On or about the 11th day of February, 1980 the Defendants converted to their own use certain monies due the Plaintiff under an insurance contract" provided and issued by defendants of a value believed to be in excess of $15,000.

It will not benefit the parties to this controversy, the Bar, or the judiciary to set out Hill's first claim in its entirety. This Court certainly would not want to encourage such pleading, but suffice it to say that though it is difficult to express what claim is alleged, it does not appear beyond doubt that plaintiff can prove no set of facts in support of an action for an accounting.

As to the second claim, we cannot say as a matter of law that " 'certain monies due the Plaintiff under an insurance contract,' whether still in the hands of Ideal Mutual Insurance Company or paid to Kraft, Inc. by that insurance company," cannot be specific property which would support an action in conversion, under any conceivable set of facts which plaintiff might prove. In support of its position, Kraft cites as authority the cases of Lewis v. Fowler, 479 So.2d 725 (Ala.1985), and Humana of Alabama, Inc. v. Rice, 380 So.2d 862 (Ala.Civ.App.1979), cert. denied, 380 So.2d 864 (Ala.1980). In both of those cases, the respective courts held that the defendants were entitled to directed verdicts because the plaintiffs failed to prove their conversion claims.

In Lewis v. Fowler, supra, at 726, this Court explained:

"Now, in conversion cases, the courts are not confronted so much with a particular piece of money, i.e., a coin or a bill, but with identified or segregated sources from which money has come or types of accounts into which money has been deposited." (Emphasis added.)

And, in that case, we held that plaintiff proved neither the existence of identifiable money nor the existence of a special account into which the garnished wages had been placed:

"In this case, the Court is being asked to determine whether money which was withheld from wages of an employee by an employer in response to a garnishment filed against the employer by a creditor of the employee is specific property which will support an action in conversion. Clearly, there is no identifiable coin or bill, and nothing that has been sealed up in a particular letter, 'wrapped up to itself,' or placed in a bag or chest. There is no evidence that this money was placed in a special account. It is merely money which was not paid to an employee or to the creditor of an employee, but was withheld from an employee's wages in response to a garnishment.

"... In the present case, the plaintiff could clearly have recovered sums withheld under the theory of assumpsit or on account. This Court will not extend the definition of 'specific money capable of identification' to money which was withheld from wages of an employee by an employer in response to a garnishment. ..."

(Emphasis added.) 479 So.2d at 726-27. There is no question that, had the plaintiff in Lewis v. Fowler produced evidence showing that his employer had deposited his garnished wages into a segregated garnishment account, this Court would have concluded that his conversion...