Turner v. Lumbermens Mut. Ins. Co.
| Decision Date | 24 February 1938 |
| Docket Number | 3 Div. 239. |
| Parties | TURNER ET AL., MEMBERS OF STATE BOARD OF ADJUSTMENT. v. LUMBERMENS MUT. INS. CO. ET AL. |
| Court | Alabama Supreme Court |
Rehearing Denied April 21, 1938.
Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.
Petition of the Lumbermens Mutual Insurance Company, Lumber Mutual Life Insurance Company of Boston, Mass., Northwestern Mutual Fire Association, Indiana Lumbermens Mutual Insurance Company, and Central Manufacturers Mutual Insurance Company for mandamus to Howell Turner, John Brandon, and Chas. W Lee, as members of the State Board of Adjustment, to compel it to take jurisdiction, hear, and determine the merits of a petition filed before it, wherein the State intervened. From a judgment awarding the writ, respondents and intervener appeal.
Reversed and rendered.
A. A. Carmichael, Atty. Gen., Silas C. Garrett, III, Asst. Atty. Gen., and Files Crenshaw, Jr., Sp. Atty., for State Board of Adjustment, of Montgomery, for appellants.
James S. Edson, of Birmingham, and Jas. S. Parrish, of Montgomery, for appellees.
The case was begun by petition for mandamus by several insurance companies against the members of the State Board of Adjustment. It sought to require the board to take jurisdiction, hear, and determine the merits of the petition filed before that board.
The Attorney General filed motion to be permitted to appear and defend for the state, which was granted, and the state thereby appeared and was represented by counsel.
To the petition for mandamus is exhibited the petition of the several insurance companies filed before the State Board of Adjustment on February 23, 1937, seeking reimbursement through that board for the amount which they had paid to the Ewell Lumber Company as the amount of damages sustained by said company as the result of a fire which destroyed the lumber yard of the said company, pursuant to the terms of policies of insurance which the Ewell Lumber Company held with said companies, which said policies insured the Ewell Company against damages to its properties, including the lumber yard, resulting from fire. The petition alleges that the lumber yard of the Ewell Lumber Company located at Ewell, Ala., was destroyed by fire on the 20th day of June, 1933, and that the fire which destroyed the lumber yard was caused by the negligence of the State Highway Department of the state of Alabama; that the amount of damages sustained by the Ewell Lumber Company as a result of the fire was $13,500, which the petitioners paid in the respective amounts set out in the petition, pursuant to the terms of the respective policies which the Ewell Lumber Company had with them. Photostatic copies of the respective checks issued to the Ewell Lumber Company by the respective insurance companies were attached to the petition. The petitioners then allege that they are subrogated to the rights which the Ewell Lumber Company had, both by operation of law and under the terms of their policies, and that they are, therefore, entitled to reimbursement of the amount claimed from the state of Alabama, since the loss sustained by the Ewell Lumber Company, which they had insured and which they paid in the respective amounts claimed, was caused by the negligence of the State Highway Department of the state of Alabama.
The transcript shows, as an exhibit to the petition for mandamus, the motion filed with the State Board of Adjustment by the State Highway Department of Alabama, and the state of Alabama, acting through the Attorney General, moved that said board dismiss the petition because the said board was without power and authority to hear and consider the same; because the said board had no jurisdiction to hear and consider the same; because it was not the intention of the Legislature in creating said board to provide a method whereby an insurance company could secure reimbursement from the state of Alabama for money paid out by it pursuant to a risk or hazard which it had assumed for the payment of the premium required by it for the assumption of such risk or hazard; because the intention of the Legislature in creating said board was only to provide a method by which persons injured by the state of Alabama or any of its departments, institutions, bureaus, boards, commissions, or agencies, who could not get recourse through the courts of the state, could be compensated for such injuries; because the act creating the said board and the act amending said act made no provision whatever for a person or corporation such as an insurance company to be subrogated to the privilege, so far as filing a claim before the State Board of Adjustment is concerned, of a person who was injured by the state of Alabama or any of its departments, institutions, bureaus, boards, commissions, or agencies, which said person or corporation had, pursuant to a contract previously entered into by it with the said injured party, for which it had been paid according to the terms of its contract, had compensated the injured party for the injury sustained by him; because the claim was not brought in the name of the alleged injured party; and because the claim was brought in the name of a party who was not injured by the state of Alabama or any of its departments, institutions, bureaus, boards, commissions, or agencies.
On this motion there was a finding or decree of the State Board of Adjustment to the effect that the motion of the Attorney General was well taken and that the board was without jurisdiction to hear and consider petitioners' claims, and the petition and claim were dismissed for lack of jurisdiction in the board to hear and determine the matter presented by the petition.
The state of Alabama, through its attorney general, and the several members of the State Board of Adjustment, respectively, demurred to the petition directed to the judge of the circuit court on many grounds, and to the effect as stated in the motion to dismiss made before the State Board of Adjustment. Pertinent grounds of demurrer to appellees' petition for mandamus are thus stated:
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