Scottish Union & National Ins. Co. v. Dangaix

• Decision Date: 05 June 1894
• Citation: 103 Ala. 388,15 So. 956
• Court: Alabama Supreme Court
• Parties: SCOTTISH UNION & NATIONAL INS. CO. v. DANGAIX.

15 So. 956

103 Ala. 388

SCOTTISH UNION & NATIONAL INS. CO. v. DANGAIX.

Supreme Court of Alabama

June 5, 1894

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by W. J. Dangaix against the Scottish Union & National Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought to recover certain return or unearned premiums on policies of insurance, which had been issued by the defendant corporation to different persons, the holders of said policies having canceled them, as allowed under the terms of the policies, and demanded the return of a certain proportion of the premiums paid. The plaintiff claimed as assignee of these various policy holders. The action was commenced on March 15, 1893. The complaint contained 75 counts. Each of the first 73 counts sought to recover separately the amount of the return or unearned premiums due to individual policy holders, after the cancellation of their respective policies, which claims for the unearned premiums had been regularly transferred and assigned to the plaintiff. The seventy-fourth and seventy-fifth counts sought to recover the aggregate amount due to the several policy holders upon such cancellation. The defendant pleaded the general issue and the following special pleas: (1) "For answer to the complaint the defendant says it is not indebted in manner and form as stated in the plaintiff's complaint." (2) "For further answer to the complaint the defendant says the plaintiff is not the owner of the account, or claim sued on." (3) "For further answer, the defendant says that the policies of insurance named in the complaint were procured by the plaintiff as the agent of the defendant, and were issued by the defendant through the plaintiff as their agent, and for the procurement of the policy holders named in the complaint, the plaintiff secured from the defendant a portion of the premiums paid by said policy holders on said policies of insurance, which said portions of said premiums are still held by the plaintiff; and the defendant avers that the plaintiff, after he ceased to be defendant's agent procured said policies of insurance to be canceled for the purpose of depriving the defendant of the benefits thereof and then bought the unearned premiums in violation of the right of the defendant, which he had no lawful right to do and hence the defendant avers that plaintiff never procured any lawful title to said claims for unearned premiums, and has no right to maintain this suit thereon." (4) "For further answer, the defendant says the plaintiff has heretofore brought suit for a portion of the account held against the defendant on account of cancelled policies and the return of unearned premiums thereon, in the justice's court, before L. J. Haley, a notary public and ex officio justice of the peace, who had jurisdiction of the parties and of the subject-matter of the suit, and judgment was rendered by said L. J. Haley, N. P., ex. off. justice of the peace, against this defendant, for eighty-one dollars and seventy-four cents ($81.74) and costs of suit, and said judgment is still subsisting and unreversed, and the plaintiff cannot now have or maintain the above suit, which is for a part of the same account held by plaintiff against the defendant at the time said suit was instituted by the plaintiff against the defendant before said L. J. Haley, notary public and justice of the peace." The plaintiff demurred to the second plea, on the ground that it was not verified by affidavit as required by law. To the third plea the plaintiff demurred upon the grounds: (1) That it presents no defense to the plaintiff's cause of action. (2) That it does not deny the averments of the complaint. (3) That said plea sets up no matter which precludes or estops the plaintiff's recovery. (4) That the plea sets up no duty, which plaintiff owed defendants, the violation of which would preclude the plaintiff's recovery. (5) That the averment of the plea that the plaintiff never procured any lawful title to the claim sued upon, was a conclusion of law. To the fourth plea the plaintiff demurred on the ground that it was not shown which of the claims sued upon in the present action were embraced in the judgment of the justice of the peace. The demurrers to these several pleas were sustained, and issue was joined upon the pleas of the general issue. The plaintiff was the only witness examined on the trial of the cause, and his testimony tended to show that the several claims sued on had been regularly transferred to him by the policy holders; that the policies so issued gave to the holders thereof the privilege of canceling their policies, and upon such cancellation they were entitled to a certain proportion of the premiums which had been previously paid; that the plaintiff was formerly the agent of the defendant company, and as such agent procured the several policy holders to take out their policies in the defendant company. The contention of the defendant on the trial was, that the policies, which had been canceled by the respective holders, had been obtained through the agency of the plaintiff when he was the agent of the defendant company; that a few days after the plaintiff ceased to be the agent of the defendant company, he persuaded the several policy holders to cancel their policies held in the defendant company, and induced them to take in their stead policies issued by another insurance company of which the plaintiff was the agent; and that the claims sued upon were the claims due to the several policy holders upon the cancellation of their policies, which had been canceled at the instance of the plaintiff. These facts were sought to be brought out upon the trial of the cause, by several questions propounded to the plaintiff as a witness on his cross-examination. Each of such questions was separately objected to by the plaintiff, and the court sustained each separate objection, and to each of these several rulings of the court the defendant separately excepted. The cause was tried by the court without the intervention of a jury, and upon the hearing of all the evidence the court rendered judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the court upon the evidence and the rendition of judgment in behalf of the plaintiff.

Lane & White, for appellant.

John P. Tillman, for appellee.

HARALSON J.

1. The demurrer to the second plea was properly sustained, for that the plea denied the ownership of the claims sued on, and was not verified as required by rule 29, page 810 of the Code.

2. There was no error in sustaining the demurrer to the fourth plea. Each cause of action in the complaint (73 in number) is distinct and separate from every other one, as much so, as if 73 promissory notes had been declared on, separately, in the same complaint. The principle which forbids the splitting of the same cause of action by bringing two or more suits upon it, has no application here, as the theory, on which the plea is filed, assumed.

3. The real contest in this case, evidenced by the procedure in the court below and the arguments filed in the cause, was upon the demurrer to the third plea,-as to whether or not the facts therein set up, and as pleaded, constitute a good defense to this action, and preclude a recovery by the plaintiff. The bill of exceptions states, that "the plaintiff introduced in evidence each one of...