Poole v. William Penn Fire Ins. Co.

• Citation: 264 Ala. 62,84 So.2d 333
• Decision Date: 03 November 1955
• Docket Number: 6 Div. 852
• Parties: James POOLE v. WILLIAM PENN FIRE INSURANCE COMPANY.
• Court: Supreme Court of Alabama

Page 333

84 So.2d 333

264 Ala. 62

James POOLE v. WILLIAM PENN FIRE INSURANCE COMPANY.

6 Div. 852.

Supreme Court of Alabama.

Nov. 3, 1955.

Rehearing Denied Jan. 12, 1956.

Hare, Wynn & Newell and Sadler & Sadler, Birmingham, for appellant.

Winston B. McCall, Victor H. Smith and Pritchard, McCall & Jones, Birmingham, for appellee.

SIMPSON, Justice.

This case comes to us on pleadings from the Circuit Court, Tenth Judicial Circuit, Jefferson County, wherein the plaintiff (appellant) took a nonsuit upon the court's sustaining of the defendant's demurrer to plaintiff's replication number 7 (an answer to defendant's pleas 3 and 4 as amended).

The suit arose under a policy of insurance in which the defendant insured the plaintiff's ambulance against loss by fire to the extent of $3,000. The pleadings show that the vehicle was burned through the negligence of Drennen Motor Ensley, Inc., and that the plaintiff suffered a loss in excess of $6,000.

Defendant's pleas 3 and 4 in effect aver that the plaintiff ought not to recover because (1) the plaintiff has cut off the defendant's subrogation rights against the tortfeasor by executing the following release:

'For and in consideration of the sum of Three Thousand and No/100 ($3,000.00) Dollars, the receipt whereof is hereby acknowledged, the undersigned James Poole, doing business as Poole Funeral Home, does hereby compromise and admit full satisfaction of any and all claims, demands, actions or rights of action arising out of or based upon the alleged negligent or wrongful destruction by fire of a 1949 Eureka Cadillac Ambulance, Motor No. 493650380, by the Drennen Motor Ensley Co., of Birmingham, Alabama, on May 13, 1949, while the said ambulance was undergoing repair work in the custody of the Drennen Motor Ensley, Inc. For the consideration above expressed the said James Poole hereby forever releases, discharges and acquits Drennen Motor Ensley, Inc. from any and all claims, actions and rights of action based upon or arising out of said alleged negligent or wrongful destruction by fire of said ambulance. It is understood that said sum is paid by way of compromise and settlement of a disputed claim, the above named corporation expressly denying legal liability on its part.

'This settlement is not intended to discharge the William Penn Insurance Company from any claim which the said James Poole, doing business as Poole Funeral Home, has against it for insurance, but as a full settlement with, and discharge of, the Drennen Motor Ensley, Inc. only.'

and (2) since the consideration for the release amounted to full coverage of the policy, this payment constituted a discharge of the defendant's liability.

In replication 7 the plaintiff answers that he made claim under his policy, but the claim was denied and remains unpaid; that his loss was in excess of $6,000; that subsequently to the claim denial he executed the above release in consideration of $3,000; that the defendant has waived any rights of subrogation which it may have under the terms of the policy; and that the defendant has waived any rights to claim the benefits of any payment made by the tortfeasor to the plaintiff.

The defendant interposed forty grounds of demurrer to this replication. The court sustained the demurrer. Plaintiff took a nonsuit and now appeals; his assignments of error properly bring up for review the ruling below sustaining the defendant's demurrer to plaintiff's replication 7, as an answer, separately and severally, to pleas 3 and 4 as amended.

From the judgment entry it is not specifically recited that appellant was forced to suffer a nonsuit because of adverse rulings of the trial court. However, upon comparison of the instant recital with that contained in the appeal record of the case of Ex parte Martin, 180 Ala. 620, 61 So. 905, we have concluded in favor of appellant and will proceed to review the stated ruling.

In undertaking such review, however, we are limited to consideration of only such rulings of the trial court as culminated in and superinduced the taking of the nonsuit. Calvert Fire Ins. Co. v. Maddox, Ala.App., 82 So.2d 277, 279, certiorari denied Ala., 82 So.2d 280.

The judgment entry recites a series of court rulings on December 6, 1954, in response to extensive pleadings. It shows that the plaintiff took a nonsuit following ruling on the demurrer to replication 7, although there is no specific mention that the nonsuit resulted from this ruling, viz.:

'* * * plaintiff by separate paper filed Replication No. 7, defendant refiles and reassigns all demurrers heretofore filed to said Replication No. 7; the demurrers to replication No. 7, as an answer to Pleas 2, 3, 4, separately and severally, are by the court heard and considered, whereupon,

'It is ordered and adjudged by the court that said demurrers be and they are hereby sustained; plaintiff withdraws Replication No. 1; plaintiff declines to plead further and takes a non-suit, and moves the court for an order accordingly, whereupon,

'It is ordered and adjudged by the court that a non-suit be and the same is hereby entered in accordance with plaintiff's motion, * * *.'

'The recitals of the judgment as to the cause of the non-suit is conclusive, Garner v. Baker, 214 Ala. 385, 108 So. 38, and if the judgment entry does not specify with particularity the ruling or rulings necessitating the non-suit, 'the court must for itself determine, within the recitals thereof (Long v. Holley, 157 Ala. 514, 47 So. 655), just what was the ruling or rulings which obstructed plaintiff's right '* * * to proceed in his effort for recovery.'' City of Mobile v. Board of Revenue and Road Commissioners of Mobile County, 219 Ala. 60, 121 So. 49, 51.' Calvert Fire Ins. Co. case, supra.

The import of the holding in the City of Mobile case, supra, and approved in the Calvert Fire Ins. Co. case, supra, is that in the absence of a specific recital or showing in the judgment that the rulings prior to that on the demurrer to replication 7 were material inducements to the nonsuit we should not so hold, but should conclude that the action of the court in sustaining the demurrer to replication 7 was the ruling which obstructed the plaintiff's right to proceed in his effort for recovery and therefore it is the only ruling up for review. 'If this were not true, on such appeal, we would open the way to a consideration of all the rulings prior to the nonsuit,...