McWhorter v. Williams, 7 Div. 247.

• Decision Date: 24 May 1934
• Docket Number: 7 Div. 247.
• Citation: 155 So. 309,228 Ala. 632
• Parties: McWHORTER et al. v. WILLIAMS et al.
• Court: Alabama Supreme Court

155 So. 309

228 Ala. 632

McWHORTER et al. v. WILLIAMS et al.

7 Div. 247.

Supreme Court of Alabama

May 24, 1934

Appeal from Circuit Court, De Kalb County; A. E. Hawkins, Judge.

Bill for injunction by W. L. McWhorter and Builders' &amp Manufacturers' Mutual Casualty Company against Burnett Williams, Laura Williams, Rosa Gibson, and Bertha Burns. From a decree sustaining a demurrer to the bill, complainants appeal and move for an interlocutory or temporary injunction.

Affirmed motion denied.

Isbell & Beck, of Fort Payne, for appellants.

Scott &amp Dawson and Haralson & Son, all of Fort Payne, for appellees.

GARDNER Justice.

Complainants seek injunctive relief against the further prosecution of damage suits by defendants in the courts of Tennessee; the collision out of which these suits arose having occurred in Alabama where defendants reside.

The equity of the bill is primarily rested upon the case of Weaver v. Ala. Great Southern R. R. Co., 200 Ala. 432, 76 So. 364, in which was the holding that where both parties to an action in a sister state are residents of this state, a court of equity may here act in personam and enjoin further prosecution of such suit, where its purpose is to evade the effect of the law of the domicile of the parties, and the effect of which is to obtain an advantage concerning the substantive law of contributory negligence. But the power is one to be sparingly exercised, and no general rule can be laid down as to when the court ought to enjoin a party from prosecuting a suit in a foreign jurisdiction. Each case must be controlled by its own facts. 14 R. C. L. §§ 113-115.

And in Folkes v. Central of Georgia Ry. Co., 202 Ala. 376, 80 So. 458, 461, this court declined to extend the principle in favor of a nonresident corporation seeking to enjoin a resident of this state from the further prosecution of a suit against it in the state of its domicile, saying: "This is a transitory action, and, so far as legal rights are concerned, it has been held that the state is without power to restrict the plaintiff in such action to the courts of Alabama in the prosecution of such a suit (W. U. T. Co. v. Howington , 73 So. 550; Tenn. Coal Co. v. George, 233 U.S. 354, 34 S.Ct. 587, 58 L.Ed. 997, L. R. A. 1916D, 685); and the above-stated rule should be carefully guarded in its application lest it be abused."

Numerous authorities upon this question are reviewed in the note to Delaware, L. & W. R. R. Co. v. Ashelman, 69 A. L. R. 588, among them that of American Express Co. v. Fox, 135 Tenn. 489, 187 S.W. 1117, Ann. Cas. 1918B, 1148, holding such injunction is not to be granted at the instance of a nonresident, in harmony with the observation of this court in Folkes v. Central of Georgia Ry. Co., supra, that no such instance had been called to the attention of the court.

But the granting of such injunctive relief is largely in the discretion of the court, and these observations are considered worthy of note, though not of controlling importance here.

The denial of the relief here, in our opinion, rests upon very substantial grounds. It appears that complainant McWhorter (a resident of Alabama) operates by trucks a freight line between Chattanooga, Tenn., and Gadsden, Ala., and that, as required by law, he carried personal liability insurance in the sum of $10,000; complainant Builders' & Manufacturers' Mutual Casualty Company issuing the policy thereon.

Defendants insist that the negligent operation of one of McWhorter's trucks has given justification for their suits.

Complainant Builders' & Manufacturers' Mutual Casualty Company, the insurer, is a nonresident corporation, and not engaged in business in this state by agent or otherwise.

The bond of the insurer was for the benefit of the general public, who might by accident come within its influence, and by express statutory provision such insurer may be subjected to direct suit by any person sustaining actionable injury protected by the bond. Gen. Acts 1927, p. 309; Gen. Acts 1931, p. 312, § 13; Hodges v. Wells, 226 Ala. 558, 147 So. 672; Continental Auto Ins. Underwriters v. Menuskin, 222 Ala. 370, 132 So. 883.

We construe the bill as disclosing that this insurer was not subject to suit in this state for lack of necessary service. But these defendants had the right to sue McWhorter and his insurer in the same action, and to effectuate that purpose the suit was brought in Tennessee, where service was obtainable against both.

To grant the injunctive relief here prayed would result in an injustice to these defendants in denying to them the right to prosecute their suits jointly against McWhorter and the insurance company, and in practical effect deny to them in a single suit recourse against the insurer whose bond was primarily required by law for their protection. Clearly, a court of equity, in the exercise of a sound discretion, would not so extend the rule recognized in the Weaver Case, supra, as to work such an injustice.

Nor does the mere matter of inconvenience as to the trial (14 R. C. L. § 119), or the fact that a large number of witnesses reside in this state, rendering it necessary to take their depositions, suffice to give the bill equity. 32 Corpus Juris 117; Delaware, L. & W. R. R. Co. v. Ashelman, supra.

We are well persuaded the sufficiency of the bill cannot be rested upon the theory just discussed. Nor can the bill be sustained as one to prevent a multiplicity of suits. A mere community of interest in the question of law and fact involved is not sufficient to sustain the equity of the bill upon any such theory. Roanoke Guano Co. v. Sanuders, 173 Ala. 347, 56 So. 198, 35 L. R. A. (N. S.) 491; Hamilton v. Ala. Power Co., 195 Ala. 438, 70 So. 737. Note Georgia Power Co. v. Hudson, 75 A. L. R. 1439, and authorities cited therein.

But the complainant insurance company argues that the penalty of its bond is limited to $10,000, while the suits aggregate a sum largely in excess of this amount, that its liability as thus limited is in the nature of a trust, and there is therefore a community of interest in the subject-matter so as to give equity upon the theory of the prevention of a multiplicity of suits.

The case of Bradford v. National Surety Co., 207 Ala 549, 93 So. 473, 474, negatives the theory that the insurer's liability on the bond "partook in any degree of the nature of a trust," and that authority, as well as that of National Surety Co. v. Graves, 211 Ala. 533, 101 So. 190, 191, answer the suggestion that the insurer may be subjected, on account of these different suits, to payment in excess of the...