Ledbetter v. Frosty Morn Meats

• Decision Date: 21 February 1963
• Docket Number: 4 Div. 43
• Parties: Lee J. LEDBETTER v. FROSTY MORN MEATS et al.
• Court: Alabama Supreme Court

Page 365

150 So.2d 365

274 Ala. 491

Lee J. LEDBETTER v. FROSTY MORN MEATS et al.

4 Div. 43.

Supreme Court of Alabama.

Feb. 21, 1963.

John W. Gibson, Troy, and Tipler & Fuller, Andalusia, for appellant.

Oliver W. Brantley, Troy, for appellees.

COLEMAN, Justice.

This is an appeal by plaintiff from a voluntary nonsuit induced by the ruling of the court sustaining defendants' demurrer to plaintiff's Replications 3 and 4, in an action for personal injury.

To the complaint charging negligence, defendants pleaded the general issue and that plaintiff had executed and delivered to defendants, in consideration or $2,292.93 paid to plaintiff by defendants, a release of plaintiff's claim against defendants for the liability sued on.

Plaintiff filed Replications 3 and 4 wherein plaintiff alleged that he was induced to execute the release by the fraud of an agent of defendants.

The reporter will set out Replication 3 in extenso. Replication 4 is the same as 3, except that 4 contains the additional allegation that plaintiff had no knowledge of the contents of the release prior to the filing of defendants' pleas 2 and 3, and that plaintiff, upon the filing of his replication, tendered $2,292.93 to defendants and delivered the same to the clerk of the court.

Defendants' demurrer to the replication contains the following ground:

'18. It does not appear that the consideration for the release was restored or tendered to be restored within a reasonable time after discovery of the alleged misrepresentation.'

Plaintiff's single assignment of error recites:

'1. The Court erred in sustaining defendants' demurrer to Plaintiff's replications 3 & 4. (TR. p. 14.)'

In Western Railway of Alabama v. Arnett, 137 Ala. 414, 34 So. 997, the assignment of error based on the ruling of the court in sustaining the demurrers to pleas 2, 3, and 8 was as follows:

"The court erred in sustaining plaintiff's demurrers to defendant's pleas numbered 2, 3 and 8." (137 Ala. 418, 34 So. 999.)

This court said:

'It may be said as to sustaining the demurrers to pleas 2, 3, and 8, that if any of the grounds were properly sustained, the assignment of error cannot be allowed, for the reason that it is not based upon these rulings severally, but upon them as a whole. Sustaining the demurrer to the eighth plea was good, and, therefore, the ruling sustaining the demurrers to the three pleas was without error.--Goodwin v. Whitehead, 95 Ala. 409, 11 South. 65; Kennon v. W. U. T. Co., 92 Ala. 399, 9 South. 200; Coleman v. Pike County, 83 Ala. 326, 3 South. 755.' (137 Ala. 425, 34 So. 1000.)

A demurrer is a single entity of pleading and the numbered grounds set up do not constitute separate units. If any ground is good, the demurrer should be sustained. It should not be overruled unless each of the grounds fails to point out some insufficiency. The assignment of error complaining of the ruling on dumurrer should be for sustaining (or overruling) the demurrer to a certain numbered plea (or count) (or replication). Central or Georgia Railway Co. v. Hinson, 262 Ala. 223, 226, 227, 78 So.2d 286.

In the Hinson case, supra, the second assignment was that the court erred in sustaining demurrers 6, 7, 8, and 9 to appellant's answer to the complaint. This court said that the judgment and assignment of error misconceived the nature of a demurrer and proceeded to state the rules we have copied above. This court further said:

'It is appropriate and necessary to assign as error the judgment in respect to each plea separately if a separate consideration of each is insisted upon. The assignments are not so set up. (Error) Being assigned to all pleas jointly, the judgment is not due to be reversed if the demurrer on any of its grounds pointed out a substantial defect in any of the pleas, although it may not have pointed out a defect in all of them. * * * The second assignment or error cannot be upheld.' (Par. Supplied.) (262 Ala. 223, 227, 78 So.2d 286, 289.)

In the case at bar, it is necessary to assign as error the judgment in respect to each replication separately if a separate consideration of each is insisted upon. That has not been done. There is not a separate assignment as to each replication. The only assignment is with respect to the judgment as to both replications jointly, and the judgment sustaining the demurrer is not due to be reversed if the demurrer, on any of its grounds, pointed out a substantial defect in either replication, although it may not have pointed out a defect in both replications. Cases supporting this rule are cited in Alabama Digest, Appeal & Error, Key No. 737. See Middleton v. Western Union Telegraph Co., 197 Ala. 243, 72 So. 548.

Plaintiff does not argue that Replication 3 alleges return, or offer to return, the consideration plaintiff received on execution of the release. On the contrary, plaintiff argues that he was under no duty to return the consideration because the allegations of the replication show that the money paid to plaintiff does not constitute part payment of the claim sued on.

Plaintiff relies on Western Ry. of Alabama v. Arnett, supra, and the dissenting opinion of Samford, J., in United States Cast Iron & Foundry Company v. Marler, 17 Ala.App. 358, 86 So. 103.

In the Arnett case, plaintiff sued for personal injury and defendant pleaded a release executed by plaintiff, the consideration expressed therefor being the payment of $25 to plaintiff. To the plea of release plaintiff replied that, while he was suffering from the injury, the $25 had been given to him by defendant's agent, who represented to plaintiff that the president of defendant corporation desired to make plaintiff a present of $25, and thereupon the agent handed to plaintiff $25 in money and stated to plaintiff that defendant company would look after plaintiff when he got well and give him a permanent job when he got up; and that the agent thereupon produced a paper and asked plaintiff to sign it and told plaintiff the paper did not amount to anything, that it simply stated that plaintiff had no ill will against defendant company; that, acting on the representations of defendant's agent, plaintiff signed the paper; and that plaintiff had no knowledge of contents of paper or that it was a release except as aforesaid.

To the replication, defendant rejoined that plaintiff knew or ought to have known the contents of the release, and, with this knowledge or duty, plaintiff has never offered to return to defendant the consideration received for execution of the release.

The trial court sustained demurrer to this rejoinder. On appeal, sustaining demurrer to the rejoinder was held not error, for the reason that the rejoinder alleged that plaintiff 'ought to have known' the contents of the release, without alleging that plaintiff did know the contents of the release. This court said that plaintiff, without knowing the contents of the release was not bound by it, and, moreover, the replication alleged that the money was a gift and, if so, plaintiff was under no duty to return it.

The instant case can perhaps be most easily distinguished from Arnett by the fact that the allegations in Arnett show that the $25 was given to plaintiff as a gift prior to any mention of the paper which plaintiff signed and which was a release, and, because the payment or gift was not the consideration for the release, plaintiff was under no obligation to return the $25 as a condition precedent to rescission or repudiation of the release. In the instant case, the allegations fairly show, we think, that the $2,292.93 was paid to plaintiff at the time of and as consideration for plaintiff's signing the instant release, although it is further alleged that the paper signed was not the paper plaintiff thought he was signing. In Arnett, the alleged payment was not shown to be the consideration for the release; in the instant case the alleged payment is shown to be the consideration for the release. On that difference, Arnett, as we view it, may fairly be distinguished and is not authority for holding tender unnecessary in the instant case.

The Marler case is more difficult. In principle, the Marler case can hardly be distinguished from the case at bar.

In Marler, the basic question, with which the instant case is concerned, was raised by the evidence and not by the pleadings which were in short by consent.

In Marler, plaintiff sued his employer for personal injury and recovered judgment, from which defendant appealed. The opinion of the Court of Appeals states that plaintiff, in consideration of 50, signed a paper releasing defendant from liability. It was conceded that plaintiff executed the instrument, received the consideration recited therein, and had not returned the consideration to defendant. Plaintiff sought to avoid the effect of the release by showing that it had been obtained by fraud. Plaintiff's testimony was that while he was in a helpless condition, he, by the fraudulent representations of defendant's agent that the paper was a receipt for money to which plaintiff was entitled under an insurance contract, was caused to sign the release.

The Court of Appeals held that if plaintiff's contentions were true, he had a right to repudiate the release if it was obtained by fraud, but, he could not retain the consideration and repudiate the release at the same time.

Judge Samford, in a dissent, took the view that if, as a matter of fact, the $50 was paid to plaintiff as insurance due him, and the insurance was due him, which Judge Samford says was shown under one phase of the evidence, plaintiff got only that to which he was entitled and the paper claimed by defendant to be a release was without...