Iowa Mut. Ins. Co. v. West

• Decision Date: 05 May 1959
• Docket Number: 1 Div. 759
• Citation: 40 Ala.App. 332,116 So.2d 388
• Court: Alabama Court of Appeals
• Parties: IOWA MUTUAL INSURANCE CO. v. John W. WEST and M. O. Boatright, d/b/a Standard Construction Co.

Page 388

116 So.2d 388

40 Ala.App. 332

IOWA MUTUAL INSURANCE CO. v. John W. WEST and M. O. Boatright, d/b/a Standard Construction Co.

1 Div. 759.

Court of Appeals of Alabama.

May 5, 1959.

Rehearing Denied June 9, 1959.

Johnston, McCall & Johnston, Mobile, for appellant.

Howell & Johnston, Mobile, for appellee.

PRICE, Judge.

This is an appeal from a judgment below in favor of the plaintiff. The cause was submitted on the merits and motions by appellee to strike the transcript of the evidence, and to dismiss the appeal.

On the motions.

Appellee first moved to dismiss the appeal on the grounds that the transcript of the evidence was established in the trial court on December 3, 1957, and the record was not filed in this court until February 5, 1958, which date was more than sixty days after the transcript of the evidence was established in the trial court. Supreme Court Rule 37, Code 1940, Tit. 7 Appendix.

Appellant replied to said motion, setting up that it is shown in the record that the transcript of the evidence was filed with the circuit clerk on December 3, 1957; that thereafter, on December 11, 1957, which was within the ten days provided by Sec. 827(la), Title 7, Code 1940, for filing objections to the transcript, appellant filed with the clerk written objections to the certified transcript, with certificate of notice to opposing counsel that the objections would be called to the attention of the trial court on the 16th day of December, 1957; that before the day set for the hearing of said objections counsel for appellee consented before the court for the court reporter to correct the transcript of the evidence to meet the objections; that when the court reporter had corrected the transcript of the evidence and redelivered it to the clerk, appellant moved the court to allow it to withdraw its said objections. The court entered the following order: 'Monday, December 16, 1957. * * * This day in open court came the parties by their attorneys, and upon motion of the defendant; It is ordered by the court that defendant be, and it is hereby allowed to withdraw its objections to certified transcript filed December 11, 1957.'

Thereafter, appellee filed motion to strike the transcript of the evidence on the grounds that appellant admitted in its reply to the motion to dismiss the appeal that the correctness of the transcript of the evidence was questioned, and the trial court's ruling was not endorsed on the transcript as required by Sections 827(la), 827(lb), Title 7, Code supra.

We fail to find merit in either of appellee's motions. The appeal was not due to be dismissed because of delay in filing the transcript in this court. We hold that the transcript of the evidence was not established until the court's order was made on the 16th day of December, 1957. The transcript of the record was filed in this court within sixty days thereafter.

As for appellee's second motion, it is not contemplated by Section 827(la), Code supra, that an endorsement of the court's ruling will be made on the transcript, when in fact there is no hearing of objections interposed and no ruling of the court thereon.

On the merits.

The suit is based on an automobile liability policy issued to plaintiff by defendant. The cause was tried by the court without the intervention of a jury. Judgment was rendered in favor of plaintiffs and against the defendant in the amount of $468.72. Defendant appeals.

The complaint, as last amended, reads as follows:

'Count One

'Plaintiffs claim of the defendant the sum of One Thousand and No/100 ($1,000.00) Dollars as damages for breach of a contract of insurance entered into by and between plaintiffs and defendant on, to-wit, the 11th. day of September, 1954, whereby defendant, for and in consideration of the sum of $54.60, which sum plaintiffs aver was paid by them to defendant, agreed to insure the plaintiffs against any liability sustained to any person caused by accident arising out of ownership, maintenance or use by plaintiffs of a 1953 Ford one-half ton pickup truck, Motor No. FloB 3W16503 for a period of time from September 11, 1954, to September 11, 1955, and for the same consideration defendants agreed to defend any suit against the plaintiffs which alleged injuries, sickness, disease, or damage to property or person on account of ownership, maintenance or use by plaintiffs of said truck, even if such suit were groundless, false or fraudulent. Defendant further agreed in said contract to reimburse plaintiffs for all reasonable expense, other than for loss of earnings, incurred in defending such suits. Plaintiffs further ever that defendant and plaintiffs further agreed in said contract that the liability of the defendant would be limited to the amount of $5,000.00 for each person injured as a result of an accident, $10,000.00 for each such accident and a total property damage liability of $5,000.00 for each such accident. Plaintiffs further aver and allege that on, to-wit, the 21st. day of July, 1955, while said contract of insurance was in full force and affect the said motor vehicle described in the said contract of insurance was involved in an automobile accident, with an automobile owned by one A. W. Marshall and being operated by said A. W. Marshall's wife, Virginia Marshall, on Highway 43 in the City of Jackson, Clarke County, Alabama. Plaintiffs aver that they became liable to the Marshalls by virtue of the said automobile accident for damage to the automobile of A. W. Marshall and for personal injuries of Virginia Marshall. Plaintiffs further aver that they notified the company of the accident, however, the company denied to plaintiffs coverage under said contract on the grounds that they had not received payment of the premiums, when in fact they had received payment of the premiums on said policy, and plaintiffs aver that although they had performed all obligations of the contract on their part that they defendant breached said contract in that after being notified of said loss it denied coverage on the grounds that it had not received premiums, when in fact it had been paid such premiums by the plaintiffs. The plaintiffs aver that after defendants denied coverage of the said contract, and on, to-wit, August 2, 1955, A. W. Marshall filed suit against the plaintiff John West, one of the partners (I.J.L.) for the sum of $500.00 in the Circuit Court of Mobile County, Alabama at Law. And on, to-wit, August 2, 1955, the said Virginia Marshall filed suit against the plaintiff John West, one of the Partners (I.J.L.) for the sum of $1,000.00 as damages for personal injuries in the Circuit Court of Mobile County, Alabama, and that Plaintiffs (I.J.L.) were caused to hire an attorney and pay his fee and to pay the Marshalls to get the said suits settled which sums plaintiffs (I.J.L.) aver they paid and said suits were thereafter dismissed and as a direct and proximate cause of the breach of the said contract by the defendant, the plaintiffs were caused to incur the expense of defending said suits, and the plaintiffs further aver and allege that they were caused to incur attorney's fees in defending said suits and were caused to pay the said Marshalls for their damages sustained in said accident, and plaintiffs further aver that as a direct and proximate result of the breach by the defendant that the State of Alabama Department of Public Safety revoked their drivers license and the license plates on all of their motor vehicles because they were unable to furnish proof that they had liability insurance at the time of the accident which proof defendant declined to make on plaintiffs behalf and plaintiffs were caused embarrassment and were put to great inconvenience, all to the plaintiffs' detriment hence this suit.

'Count Two

'Plaintiffs claims of the defendant One Thousand and No/100 ($1,000.00) Dollars due on a policy, whereby the defendant on, to-wit, the 11th. day of September, 1954, insured the plaintiffs against loss sustained by any person caused by accident and arising out of the ownership, maintenance or use of one 1953 Ford one half ton truck, Motor No. F10B 3w16503 and the plaintiffs aver that on, to-wit, the 21st. day of July, 1955, while said policy was in full force and effect that said truck was involved in an automobile accident and of this defendant has had notice, and the plaintiffs were caused to suffer loss or liability to the owner and to the driver of the other vehicle involved in this accident by virtue of said accident and were caused to incur expense in defending suits filed by the owner and driver of the other vehicle in that plaintiffs were caused to hire an attorney and to pay his fee and were caused to pay a sum of money to the owner and to the driver of the other vehicle involved in said accident in consideration of which sum paid by plaintiffs the said owner and the said driver of the other vehicle involved in this collision dismissed their said suits and released plaintiffs from further liability on account of said accident, and plaintiffs aver that the loss they sustained by having to hire an attorney and by having to pay the owner and the driver of the other vehicle involved in this said accident was a loss which arose out of the ownership and maintenance or use of said insured automobile. Said policy is the property of the plaintiffs.'

Assignments of error 1 and 2 take the point that the court erred in overruling the demurrer to each count of the amended complaint. The sole ground of demurrer argued in brief is: '1. Because the allegations that the plaintiffs became legally obligated to the Marshalls is a conclusion of the pleader not supported by any averment of facts.' The statement is made in brief that, 'In particular, the complaint does not allege that the insured vehicle was being driven by either of the assureds or by an agent, servant or employee of theirs, nor, in fact, does either count aver by whom the vehicle was being driven...