U.S. Fidelity & Guaranty Co. v. International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local No. 612

• Decision Date: 04 October 1960
• Docket Number: 6 Div. 771
• Citation: 125 So.2d 526,41 Ala.App. 114
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL NO. 612.
• Court: Alabama Court of Appeals

Page 526

125 So.2d 526

41 Ala.App. 114

UNITED STATES FIDELITY & GUARANTY CO. v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL NO. 612.

6 Div. 771.

Court of Appeals of Alabama.

Oct. 4, 1960.

Rehearing Denied Nov. 1, 1960.

S. Palmer Keith, Jr., Birmingham, for appellant

Corretti & Newsom, Birmingham, and Hawkins & Rhea, Gadsden, for appellee.

HARWOOD, Presiding Judge.

This is an appeal from a judgment for the plaintiff below rendered by the Circuit Court of Jefferson County, in an action at law for damages for breach of the condition of an injunction bond issued by the appellant.

On the original trial of this case in the Intermediate Civil Court of Birmingham, the appellee recovered a judgment for $750. Appellant appealed to the Circuit Court of Jefferson County and the cause was tried anew with appellee recovering a judgment for $1,000. An appeal was taken to this Court and we reversed the judgment and remanded the case because of a failure to prove the dissolution of the injunction upon which the bond was conditioned. See United States Fidelity & Guaranty Co. v. International Brotherhood of Teamsters, etc., 40 Ala.App. 452, 115 So.2d 42.

Thereafter the cause was again tried in the Circuit Court of Jefferson County without a jury and a judgment in favor of appellee for $1,000 was entered on February 1, 1960. From this judgment appellant takes this appeal.

The bond sued on was issued pursuant to Tit. 7, Sec. 1043, Code of Alabama 1940, which provides:

'In other cases, the party must give bond with surety, in such sum as the officer granting the application directs payable to the party against whom the application is granted, and approved by the register, and conditioned to pay all damages and costs which any person may sustain by the suing out of such injunction, if the same is dissolved.'

The condition of the bond was to 'pay all damages and costs which any person may sustain by the suing out of such injunction, if the same is dissolved.'

The record shows, without dispute, that a temporary injunction was issued against the appellee on April 28, 1953, that appellant issued the bond sued on upon the above condition, and that the temporary injunction upon which the bond was conditioned was dissolved by court decree on October 4, 1956.

The sole damages claimed by appellee as a result of the dissolution of the injunction were the attorney's fees paid by appellee in procuring the dissolution of the injunction. The evidence shows that appellee paid $1,000 for legal services in getting the injunction dissolved.

Appellant's first assignment of error is that the court erred in overruling the appellant's motion for a new trial. The motion for a new trial contains some twenty-two grounds. Several of these grounds are directed toward the proposition argued under assignment of error number one.

As we understand the appellant's argument in relation to assignment of error number one, it is that no damages could be recovered upon the dissolution of the injunction for the reason that at the time of its issuance the prevailing law was that State courts had jurisdiction of the matters involved, and it was thereafter that the United States Supreme Court determined that State courts did not have such jurisdiction.

We pretermit consideration of whether appellant's interpretation of the doctrines of the applicable United States Supreme Court cases is correct, for it is our view that the plaintiff below was in any event entitled to recover.

As stated in Miller v. Wood, 257 Ala. 594, 60 So.2d 353, 354; 'The bond is the contract of the parties executing it, the statute prescribes its terms and conditions, and the right of action arises immediately upon its breach.' In this case, under the provisions of the statute and the bond the right of action accrued to the plaintiff-appellee upon the dissolution of the injunction.

The undisputed evidence shows that the injunction was dissolved, and this in itself would entitle the plaintiff to recover at least nominal damages. See Salmon et al. v. Salmon, 13 Ala.App. 510, 69 So. 304. It is well settled by our cases that attorney's fees paid to procure the dissolution of an injunction are recoverable as damages in an action on the insurance bond. See Jackson v. Millspaugh, 100 Ala. 285, 14 So. 44; Curry v. American Freehold Land Mortgage Company, 124 Ala. 614, 27 So. 454; Fidelity & Deposit Company of Maryland v. Walker, 158 Ala. 129, 48 So. 600; McCord v. Bridges, 211 Ala. 295, 100 So. 469.

The plaintiff below having introduced evidence tending to show that it had actually paid attorney's fees of $1,000 for instituting the proceeding resulting in the dissolution of the injunction, and that such fees were reasonable, the court below was clearly within its province in awarding damages in such amount.

Nor can it be reasonably argued that because of change in the law subsequent to the issuance of the injunction there was no occasion to employ counsel to dissolve it, since no present injury was caused by the injunction. See Rosser v. Timberlake, 78 Ala. 162. The injunction continued to legally exist until it was dissolved by the court in the proceedings looking toward that end. Bush v. Kirkbride, 131 Ala. 405, 30 So. 780.

Appellant's assignment of error number six asserts error on the part of the court in receiving in evidence, over appellant's objection, a copy of a memorandum brief filed by appellee's counsel in the proceeding wherein the injunction was dissolved.

Prior to the reception of the brief there was testimony by one of the plaintiff's attorneys that the brief was an exact copy of the brief filed with the trial court; that the original was in the files of the court. Under these circumstances the copy was admissible, and the defendant's objection on the ground that...