Liberty Nat. Life Ins. Co. v. Collier

• Decision Date: 16 November 1933
• Docket Number: 8 Div. 523.
• Citation: 228 Ala. 3,154 So. 118
• Parties: LIBERTY NAT. LIFE INS. CO. v. COLLIER et al.
• Court: Alabama Supreme Court

154 So. 118

228 Ala. 3

LIBERTY NAT. LIFE INS. CO. v. COLLIER et al.

8 Div. 523.

Supreme Court of Alabama

November 16, 1933

Certiorari to Court of Appeals.

Lewis Collier and another sued the Liberty National Life Insurance Company on a policy of life insurance. From a judgment for plaintiffs, defendant appealed to the Court of Appeals. The judgment being there affirmed, defendant now applies for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Liberty National Life Ins. Co. v. Collier, 154 So. 116.

Writ granted; reversed and remanded.

Raymond Murphy, of Florence, for petitioner.

Bradshaw & Barnett and Robert M. Hill, all of Florence, opposed.

BROWN Justice.

The opinion of the Court of Appeals applies the doctrine of error without injury to the case as presented by the record without stating the facts. In such case, ordinarily, as has been uniformly ruled here, the decision of that court cannot be reviewed. Campbell v. State, 216 Ala. 295, 112 So. 902.

But where this doctrine has been applied under a misapprehension of the law, and this appears on the face of the opinion, this court will reverse the Court of Appeals and remand the case to that court for further consideration.

It is stated in the opinion that "The bill of exceptions does not purport to set out all the evidence-hence we assume such a condition of same as to justify each ruling-none of same being inherently and incurably erroneous-to which exception was reserved."

As was observed in Bolton v. Cuthbert, 132 Ala. 403, 31 So 358, 359, 90 Am. St. Rep. 914, "While this court has gone very far in indulging this presumption to sustain the judgment below, where charges are involved, it has never extended it to a case where evidence was improperly admitted or excluded," citing Torrey v. Burney, 113 Ala 496, 21 So. 348; Postal Telegraph Cable Co. v. Hulsey, 115 Ala. 193, 22 So. 854; DeLoach v. Robbins, 102 Ala. 288, 14 So. 777, 48 Am. St. Rep. 46; McDonald v. Wood, 118 Ala. 589, 24 So. 86, section 6438, Code of 1923.

This rule has been reaffirmed. See John Dodd Wholesale Grocery Co. v. Burt, 225 Ala. 438, 143 So. 832; Southern Hardware & Supply Co. v. Standard Equipment Co., 165 Ala. 582, 51 So. 789; Berow v. Brown, 208 Ala. 476, 94 So. 772.

The writ of certiorari must therefore be granted, the judgment of the Court of Appeals reversed, and the cause remanded to that court for...