Hudson and Thompson v. First Farmers and Merchants Nat. Bank of Troy

• Decision Date: 07 March 1957
• Docket Number: 4 Div. 859
• Citation: 93 So.2d 415,265 Ala. 557
• Parties: HUDSON AND THOMPSON v. FIRST FARMERS AND MERCHANTS NATIONAL BANK OF TROY.
• Court: Alabama Supreme Court

Page 415

93 So.2d 415

265 Ala. 557

HUDSON AND THOMPSON v. FIRST FARMERS AND MERCHANTS NATIONAL BANK OF TROY.

4 Div. 859.

Supreme Court of Alabama.

March 7, 1957.

Richard C. Belser, Hill, Robison & Belser, Montgomery, and Jas. G. Clower, Troy, for appellant.

E. C. Orme, Troy, for appellee.

LIVINGSTON, Chief Justice.

Hudson and Thompson, a partnership, brought suit in the Circuit Court of Pike County against the First Farmers and Merchants National Bank of Troy, Alabama. The bank interposed a plea in abatement of the suit. After a judgment overruling Hudson and Thompson's demurrers to the bank's plea in abatement, Hudson and Thompson took a non-suit and appealed.

The complaint in this cause consists of 3 counts. Counts 1 and 2 claim of the defendant $12,560.12 for money received by the defendant between February 22, 1950 and March 15, 1953 to the use of the plaintiff, which money with interest thereon, is still unpaid. Count 3 alleges that plaintiff claims of the defendant $12,560.12, for that between February 22, 1950 and March 15, 1953, one L. E. Patterson, an employee of plaintiff, did embezzle or fraudulently misappropriate such sum of money, and that such embezzlement or fraudulent misappropriation was accomplished by such employee through the wrongful conduct of the defendant, in that said employee deposited to his own credit in the defendant bank various checks which were the property of the plaintiff and which were never endorsed by any person authorized to endorse the same, but were wrongfully endorsed by said employee and wrongfully accepted by the defendant, and credited to the account of said employee.

To this complaint, the defendant entered the following plea in abatement:

'Now comes the Defendant, the First Farmers and Merchants National Bank of Troy, a corporation, and for Plea in Abatement to the Complaint filed in this cause and to each Count thereof, separately and severally, states that this cause should be abated for that on, towit, the 19th day of June, 1953, the Plaintiff transferred or assigned a part of this cause of action, sued on in this cause to Columbia Casualty Company, a corporation, and at the time of the filing and institution of this suit, there was pending in the United States District Court, Middle District of Alabama, Northern Division, a suit field by Columbia Casualty Company, a corporation, Plaintiff, against the Defendant in this cause, wherein the same subject matter and cause of action is involved; that the Defendant has not consented to the filing of this suit.

'Wherefore, the Defendant prays the judgment of this Court that said Summons and Complaint be quashed, and said cause abated.'

This court has held that the pendency of a suit in a federal court, with jurisdiction of the subject matter and the parties, involving the same cause of action, may be pleaded in abatement of another suit in a court of this state between the same parties and involving the same cause of action. Watson v. Mobile & O. R. Co., 233 Ala. 690, 173 So. 43; Interstate Chemical Corp. v. Home Guano Co., 199 Ala. 583, 75 So. 166; Orman v. Lane, 130 Ala. 305, 30 So. 441.

The reason for sustaining such a plea is that the later action is deemed unnecessary and vexatious, and for the plea to be good the judgment which could be rendered in the first action must be such as would conclude the parties and operate as a bar to the subsequent action. Ex parte Gurganus, 251 Ala. 361, 37 So.2d 591; Priest v. Chenault, 239 Ala. 209, 194 So. 651; Milbra v. Sloss-Sheffield Steel & Iron Co., 182 Ala. 622, 62 So. 176, 46 L.R.A.,N.S., 274; Williams v. Gaston, 148 Ala. 214, 42 So. 552. In Foster v. Napier, 73 Ala. 595, 604, this court, speaking through Chief Justice Brickell, stated:

'The plea of the pendency of a prior action for the same cause, between the same parties, stands upon like principles, and is supported by like evidence, as a plea of a former recovery. The two pleas have not the same, but a like office; the difference is, that the one is interposed because of the pendency of the first action, the other after its termination; the one is in abatement of the second suit, the other in bar, to defeat it absolutely. The plea is not, therefore, available, unless the judgment which could be rendered in the prior action would be conclusive between the parties, and operate as a bar to the second. (Emphasis supplied.)

We do have a line of cases which hold, that, in contemplation of law, the insured and the insurer are, in regard to the loss, one person, and the distribution of the proceeds is a matter concerning only the insured and the insurer; therefore, upon paying a loss, an insurer may sue the person negligently causing the damage, using the name of the insured, for the resulting damages, and retain from the amount recovered the sum paid to the insured, and turn the balance over to him, or the insured may sue thewrongdoer for his own benefit, and that of the insurer. Tarrant American Savings Bank v. Smokeless Fuel Co., 233 Ala. 507, 172 So. 603; Collins v. Mobile & O. R. Co., 210 Ala. 234, 97 So. 631; Wyker v. Texas Co., 201 Ala....