U.S. Cast Iron Pipe & Foundry Co. v. Bailey

• Decision Date: 14 October 1915
• Docket Number: 134
• Parties: UNITED STATES CAST IRON PIPE & FOUNDRY CO. v. BAILEY.
• Court: Alabama Supreme Court

69 So. 825

194 Ala. 261

UNITED STATES CAST IRON PIPE & FOUNDRY CO. v. BAILEY.

No. 134

Supreme Court of Alabama

October 14, 1915

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by B. Bailey against the United States Cast Iron Pipe &amp Foundry Company, upon an agreement to pay a sum certain for personal injury during disability. Judgment for plaintiff and defendant appeals. Reversed and remanded.

Transferred from the Court of Appeals under section 6, Act April 18, 1911 (Acts 1911, p. 450).

Counts 1 and 3 set up an agreement whereby 50 cents was deducted from plaintiff's wages each month while plaintiff was employed by defendant, in consideration of which defendant agreed, in case of personal injury received by plaintiff disabling him to engage in his duties, to pay plaintiff a sum of money as insurance equal to one-half the wages plaintiff was making at the time of said injury, and to continue during the entire time of plaintiff's disability for work on account of said injury. It is alleged that the said 50 cents was regularly deducted, and that plaintiff has complied with the terms of his agreement, that on the 31st of March, 1913 while engaged in and about the duties of his employment, he received personal injury which disabled him from work from time to time and up to the time of this suit, to wit September 10, 1913, and that defendant had had notice of such injury, and has refused and declined to pay such sum so agreed upon. Count 2 was on the common count for money had and received. Plea 2 was as follows:

That the contract of insurance set forth in the allegations of complaint is not a contract within the powers of defendant corporation, which was a manufacturing corporation, and not authorized to do an insurance business.

Written charge 3 refused to defendant is the affirmative charge as to the second count not to find for plaintiff under that count.

W.P. Acker, of Anniston, and Estes, Jones & Welch, of Bessemer, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

THOMAS J.

The complaint as amended contained three counts. The pleas consisted of the general issue, and special plea No. 2 of ultra vires, to which demurrer was sustained.

When the cause was submitted to the jury, count 1 was withdrawn and the general charge was given for the defendant as to count 3. The remaining count, numbered 2, was for money had and received. The trial court correctly sustained plaintiff's demurrer to plea No. 2. A corporation, other than an insurance company, may do an insurance business, as an incident to its general business, if the insurance is not contrary to the express terms of incorporation, and provided such insurance is for the protection of its properties, materials, works, machinery, plant, or employés used and...