Porter v. Alabama Farm Bureau Mut. Cas. Ins. Co.

• Decision Date: 05 May 1966
• Docket Number: 6 Div. 14
• Parties: Lonnie PORTER v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY et al.
• Court: Alabama Supreme Court

Page 254

187 So.2d 254

279 Ala. 499

Lonnie PORTER v. ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY et al.

6 Div. 14.

Supreme Court of Alabama.

May 5, 1966.

Rehearing Denied June 16, 1966.

Rogers, Howard, Redden & Mills, Birmingham, for appellant.

London, Yancey, Clark & Allen, Birmingham, for appellee.

COLEMAN, Justice.

Complainant appeals from a decree denying relief in a declaratory proceeding in equity.

Complainant is the insured in a contract whereby the insurer agreed to pay, within policy limits, all damages which insured shall become legally obligated to pay because of bodily injury and property damage sustained by others, caused by accident and arising out of the ownership, maintenance, or use of a certain automobile. Insurer also agreed to defend any suit against insured alleging such bodily injury or destruction and seeking damages therefor.

Respondents are the insurer and two persons who will be referred to as plaintiffs. Insured alleges that plaintiffs have filed actions at law against insured claiming damages for personal injury and property damage arising out of a motor vehicle accident at a certain time and place, and that, at the time of the accident, insured was driving the insured automobile. Insured alleges that insurer has had notice but has refused to defend the actions at law.

Insured prays for a declaration that insurer is obligated to defend and for an order enjoining plaintiffs from further prosecuting the actions against insured until insurer has assumed defense of the actions and for general relief.

Insured demanded a trial by jury. Insurer moved to strike the jury demand and the court granted the motion. Insured assigns this ruling for error.

Insurer answered the bill of complaint and said that insurer was not obligated to defend because insured had not given proper notice of the accident to insurer as required by the policy.

The court declared that insurer was not obligated to defend and that insured is not entitled to enjoin plaintiffs from further prosecuting the actions. This ruling is also assigned for error and argued in brief by insured, but, because we are of opinion that striking insured's demand for jury trial was error to reverse and requires a new trial, we do not consider any other error.

Complainant did not file any application for rehearing or motion for new trial, and insurer argues that the assignment charging error in denying complainant's jury demand cannot be considered because the alleged error was not brought to the court's attention by motion for new trial. Insurer relies on the following statement by this court:

'No motion for a new trial is predicated on the denial of a written demand for a jury. The weight of authority is that error in granting or refusing a jury trial is not considered on appeal, unless brought to the attention of the court by a motion for a new trial and opportunity for correction given. Horlacher v. Brafford, 141 Ind. 528, 40 N.E. 1078; Ketcham v. Brazil Block Coal Co., 88 Ind. 515; Huffmond v. Bence, 128 Ind. 131, 27 N.E. 347; Abbott v. Inman, 35 Ind.App. 262, 72 N.E. 284; Childers v. First National Bank, 147 Ind. 430, 46 N.E. 825; Alley v. State ex rel. Blenzinger, 76 Ind. 94; Meloy v. Weathers, 35 Ind.App. 165, 73 N.E. 924; Sone v. Williams, 130 Mo. 530, 32 S.W. 1016; Boyea v. Besch, 144 Minn. 254, 174 N.W. 894; Banning v. Hall, 70 Minn. 89, 72 N.W. 817. However this may be, we will examine the statute concerning the right of trial by jury in such a case.' Schwend v. City of Birmingham, 215 Ala. 491, 492, 111 So. 205.

The earliest of the Indiana cases cited above is Alley v. State ex rel. Blenzinger, 76 Ind. 94, decided at the May Term of 1881, in which appellant demanded a jury. The court overruled appellant's demand and tried the case without a jury. The Supreme Court of Indiana reversed the judgment and remanded the cause for a new trial. It appears from the opinion that appellant did make a motion for new trial. Error was assigned upon the overruling of appellant's motion for new trial. It is not expressly stated, but the opinion indicates that overruling demand for jury was made a ground of the motion for new trial because the court said: '. . . and the refusal of the court to call a jury to try the cause, was, under all the circumstances attending it, an error of law, of which appellant had good reason to complain. 2 R.S. 1876, p. 178, sec. 352.' (76 Ind. at page 96)

2 R.S. 1876 is not available to us, but, in Revised Statutes of Indiana 1881, we find § 559 which recites in part as follows:

'559. Causes for. 420. A new trial may be granted in the following cases:

'. . .

'Eighth. Error of law occurring at the trial and excepted to by the party making the application. . . .. (352.)'

The foregoing excerpt from the statute appears to be 'sec. 352' cited in Alley v. State ex rel, Blenzinger, supra, and supports the holding that refusal of the demand for a jury was proper ground of a motion for new trial.

At the November Term of 1896, the Indiana Court said:

'It is assigned as error that 'the court erred in refusing to grant appellant trial by jury.'

'The refusal to grant trial by jury is a cause for a new trial and cannot properly be assigned as error. Alley v. State ex rel. Blenzinger, 76 Ind. 94; Hiatt v. Renk, 64 Ind. 590. No question is presented, therefore, by this assignment of error.' Childers v. First National Bank, 147 Ind. 430, 436, 46 N.E. 825.

The holding in the Childers case, supra, may be understood by reference to an earlier case which seems to state the general rule in Indiana that any error for which a new trial may be granted is waived by the neglect of the complaining party to move for a new trial on the ground assigned for error. At the May Term of 1859, the Indiana Court said:

'The error first assigned (if one was committed), was waived by the neglect of the defendant to move for a new trial.

'We are of opinion that any matter, for which a new trial may be granted, is waived by the neglect of the party to move for a new trial.

'By § 355, of the code, it is provided that a new trial may be granted in the following cases:

'. . .

'Eighth. Error of law occurring at the trial, and excepted to by the party making the application. . . .

'. . .

'It is unnecessary for us now to undertake to specify particularly what matters would, and what would not, come within the above provision; but some matters of common occurrence may be named. Thus, errors in rejecting proper, or in giving to the jury improper, testimony, or in giving to the jury improper charges, or refusing proper charges, are clearly within the eighth specification, while errors committed by the Court in reference to the validity of the pleadings in an action, are not within the section at all.

'. . .

'In the language of Judge STUART, in The State v. Swarts, supra (9 Ind.R. 221), 'It is due to the lower Court that its errors, if any, should be pointed out there, so that it may retrace its steps while the record is yet under its control. Without a motion for a new trial, the attention of the Court is not called to its own errors.'

'Numerous other cases might be cited, were it necessary, establishing the proposition that for causes coming within the sixth specification of the above section of the statute, a motion for a new trial must be made in the Court below, in order to present any question for the determination of this Court.

'The same principle will require such motion to be made for every cause specified in the statute, for which a new trial may be granted.' Kent v. Lawson, 12 Ind. 675, 676, 677, 678.

The Indiana Court has also said:

'Though a question of law may be reserved for the decision of this court under section 347 of the code, yet, if it is expected to reverse the judgment upon it, it must generally be so presented below that that court could cure or avoid the error complained of by doing what the party moves it to do. . . ..' Love v. Carpenter, et al., 30 Ind. 284, 286.

We have perhaps dwelt at undue length on the Indiana rule, but we endeavor to make clear why we do not think that the Indiana rule is the law in Alabama. In Travis v. Hubbard, 267 Ala. 670, 104 So.2d 712, this court held that rulings on admission or rejection of evidence may be reviewed on appeal without a motion for new trial. In Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 226, 130 So.2d 388, this court held that rulings on the giving or refusing of requested written charges may also be reviewed on appeal without a motion for new trial.

In the instant case we hold that a ruling granting or refusing a written demand for trial by jury may be reviewed on appeal without a motion for new trial.

In Sone v. Williams, supra, the Supreme Court of Missouri said:

'I. It is now the uniform practice in this court to disregard assignments of error of which no complaint is made . . ..' (130 Mo. at page . . .' (130 Mo. at page 550, 32 S.W. at 1021)

In an earlier case, the Missouri Court had said:

'. . .. It is altogether unnecessary to inquire whether or not the defendant was entitled to a jury. If entitled, the failure to give him one was purely matter of exception to be taken advantage of, and called to the attention of the lower court by motion for new trial, in order that its alleged error might be afforded opportunity for correction. . . ..' Ward v. Quinlivin, 65 Mo. 453, 454.

In Boyea v. Besch, 144 Minn. 254, 256, 174 N.W. 894, the court said:

'The chief error of which defendant complains is that he was deprived of a jury trial. At the call of the term calendar, the attorney who represented defendant stated the case was for the jury; plaintiff's attorney insisted that it was an equity action triable to the court. The clerk's entry is: 'For trial. Court determines that above case was a court case.' The record does not contain any further request, either for a jury trial when it was reached for trial, or for submission of issues to the jury, or...