Russell v. The Praetorians

• Decision Date: 16 January 1947
• Docket Number: 6 Div. 464.
• Court: Alabama Supreme Court
• Parties: RUSSELL v. THE PRAETORIANS, Inc., et al.

28 So.2d 786

248 Ala. 576

RUSSELL v. THE PRAETORIANS, Inc., et al.

6 Div. 464.

Supreme Court of Alabama

January 16, 1947

Horace C. Alford and Chas. E. Wilder, both of Birmingham, for appellant.

Harvey Deramus, of Birmingham, for appellees.

Among the counts of the complaint were the following:

'Count Two: Plaintiff claims of the defendants the sum of One Hundred Thousand ($100,000.00) Dollars, damages for the conversion by them on the _____ of _____ 1940, of the following chattels: Five Thousand Dollars cash invested in one of defendant's, The Praetorians, 'Retirement Income Endowment Policies' and approximately Sixteen Hundred ($1,600.00) Dollars, due her as premiums commissions from sale of policies of Insurance issued by said The Praetorians, the property of the Plaintiff.

'Count 2-A: The Plaintiff claims of the defendants Six Thousand Six Hundred ($6,600.00) Dollars as damages for the wilful conversion by the said defendants on to-wit the ___ day of _____ 1940, the following personal property, to-wit $6,600.00 in cash, the property of the plaintiff. And plaintiff claims punitive damages.'

'Count 3-A: The plaintiff claims of the defendants Twenty-five Thousand ($25,000.00) Dollars as damages for the wilful conversion by the defendants on to-wit the ___ day of _____ 1940, the following personal chattels, namely Five Thousand ($5,000) Dollars in cash, lawful currency of the United States of America, the property of the plaintiff. And plaintiff claims punitive damages.' STAKELY, Justice.

This is a suit instituted by Mrs. Letha A. Weatherford Russell (appellant) against The Praetorians, Incorporated and Tom H Penton (appellees). The complaint as originally filed consisted of two counts designated as Counts 1 and 2. From time to time additional counts, designated as Counts 1-A 2-A, 3-A and AA, were filed. The court sustained the demurrer to each of these counts. The plaintiff made a motion for a non-suit. The court granted the motion and entered an order declaring a non-suit. Hence this appeal. § 819, Title 7, Code of 1940.

Count 1 is lengthy and involved and offends against the rule that requires simplicity and brevity in pleading. It covers about five pages of transcript paper and makes the mistake of attempting to state the evidence, against which § 213, Title 7, Code of 1940, was enacted. Birmingham Ry. Light & Power Co. v. Ely, 183 Ala. 382, 394, 62 So. 816. But the case is here in a proceeding to review the action of the trial court in sustaining the demurrer to the count and not on a question of prolixity. § 213, Title 7, Code of 1940.

In brief the allegations of Count 1 set up the following: The Praetorians, Inc., was engaged in the business of writing fraternal life insurance and had in its employment as general agent in the City of Birmingham one E. Y. Adams. The plaintiff was employed as a soliciting agent and during the first year of her employment sold a considerable volume of business. After she became so engaged she took out a policy upon the life of her husband with defendant in the sum of $2,000. Upon his death she collected the proceeds of this policy which, together with the proceeds of other policies, gave her an amount of money in cash of approximately $8,000. E. Y. Adams began discussing with the plaintiff an investment by her in a retirement endowment income policy issued by The Praetorians, telling her of the various benefits which would accrue to her therefrom. Adams advised her to go to see the officials of The Praetorians at the home office of the company in Dallas, Texas, in order to discuss the investment. She made the trip and invested about $5,000 with the company and received from the company two of its retirement income endowment policies. Thereafter Adams offered to put her in charge of the office of The Praetorians located in Ensley and she was told that she would receive from the sale of policies through the Ensley Office a greater amount than she was presently making. There is nothing in the count to show that Adams was at the time acting within the line and scope of his authority or that he had any connection or relationship with Tom H. Penton, the other defendant to the cause. It is alleged that the plaintiff believed the statement of Adams to be true but it is nowhere alleged that she relied thereon. Jordan & Son v. Pickett, 78 Ala. 331; Wall v. Graham, 129 Ala. 396, 68 So. 298.

Subsequently plaintiff found out that she was not allowed to do certain things and was required to pay the 'nets' on all policies issued under certain conditions. There is nothing in the allegations of the count to show the meaning of the word 'nets'. This leaves the meaning of the count at this point in obscurity. The count further shows that by reason of the requirement that plaintiff make certain payments or assume certain obligations to The Praetorians under this arrangement she was paying to the defendant (which one it is not clearly made to appear) more money than she was receiving as commissions. There is nothing to show that the defendants or either of them were guilty of any fraudulent act in this connection or that the acts of the defendants or either of them were wrongful in this connection.

Subsequently the plaintiff was taken to a hospital on account of an accident and one Green Coats was put in charge of her office. Green Coats wrote a large amount of business on some of which the plaintiff was charged 'nets' and 'non-takes'. The exact way in which this was done in not disclosed. Adams died apparently at this stage of the proceeding and the defendant Tom H. Penton assumed his duties and took his place. Tom Penton prevailed upon the plaintiff to execute to The Praetorians 'checks in the sum of _____ dollars to cover payment of said 'nets' and 'non-takes." She told Penton that she did not have sufficient funds in her bank to pay the checks when same would be presented for payment. He thereupon told her that if she would execute the checks he would assure her that the checks would not be presented for payment at her bank but would be held until he could work out a plan to take care of the matter. The count then alleges that the plaintiff upon said assurances from Penton and fully relying on his statement, executed the checks and delivered them to him. Instead of retaining the checks, Penton forwarded the checks to The Praetorians at their home office in Dallas, Texas, where they were deposited in a bank for collection. The checks were sent through 'banking circles' for collection and upon their presentment for payment at the plaintiff's bank in the City of Birmingham, they were returned 'unpaid.' Plaintiff was notified by letter June 5, 1940, that 'her contract with The Praetorians which expired as of June 30, 1940, will not be renewed.' Plaintiff was working under a surety bond. The bonding company was sued for the alleged shortage of plaintiff and a judgment recovered against the bonding company in the courts in Dallas, Texas.

The count then closes with the allegation 'Plaintiff avers that by reason of and as a proximate consequence of said scheme as was devised as hereinabove set out as aforesaid plaintiff was defrauded out of a sum of money then and there due to have been paid to her in excess of $1600 from earned commissions. She was defrauded out of her investment with The...