Wallace v. Lindsey

• Decision Date: 24 March 1960
• Docket Number: 3 Div. 866
• Citation: 270 Ala. 401,119 So.2d 186
• Parties: Lt. George C. WALLACE, of the Department of Public Safety, State of Alabama, et al. v. Leon LINDSEY et al.
• Court: Alabama Supreme Court

Page 186

119 So.2d 186

270 Ala. 401

Lt. George C. WALLACE, of the Department of Public Safety, State of Alabama, et al. v. Leon LINDSEY et al.

3 Div. 866.

Supreme Court of Alabama.

March 24, 1960.

MacDonald Gallion, Atty. Gen., and John F. Proctor, Asst. Atty. Gen., for appellants.

Knabe & Nachman, Montgomery, for appellees.

MERRILL, Justice.

Appeal from a decree overruling demurrer to bill for injunctive relief. Complainants are Leon Lindsey and Garde Mutual Insurance Company and respondents are Lt. George C. Wallace of the Department of Public Safety, Floyd Mann, Director of Public Safety, Mrs. Agnes Baggett, Treasurer of the State of Alabama, Frances Lindsey Woods and her attorney, Ramon L. Farnell, Lehman Morgan, Jr., and his attorney, L. H. Walden.

The bill shows that complainant Leon Lindsey suffered damage to his automobile in a collision in 1957 with a vehicle driven by Lehman Morgan, Jr., and complainant Garde Mutual Insurance Company, his insuror, was subrogated to his right upon payment for the damages. The subrogee then made efforts to collect from Morgan. Morgan had deposited security equivalent to the actual amount of complainants' property damages, i. e., $250, with the Department of Public Safety under the provisions of Section 5 of the Motor Vehicle Safety-Responsibility Act, General Acts of Alabama 1951, p. 1224, listed in the cumulative pocket part as Tit. 36, § 74(46).

Complainant Garde Mutual Insurance Company, through its attorney, reached an agreement with Morgan's attorney for the payment of its subrogation claim.

Frances Lindsey Woods, a passenger in Leon Lindsey's automobile, obtained a judgment against Lehman Morgan, Jr., in October, 1958, for injuries she suffered in the same collision.

The bill then alleges:

'That the security filed by Lehman Morgan, Jr. under Title 36, Section 74(46) (46) et seq., Code of Alabama 1940 was filed to cover property damages to Complainant Lindsey's automobile growing out of the said accident and that no security has been filed on behalf of Lehman Morgan, Jr. to cover any other injuries or damages.

'That the damages for which security has been filed were liquidated and made certain before the damages were reduced to judgment in the case of Frances Lindsey Woods. That the property damages were made subject to an agreement between Leon Lindsey's subrogation insuror, Garde Mutual Insurance Company, Inc., a Corporation, before the judgment was entered in the case of Frances Lindsey Woods, though such agreement was not followed resulting in suit for judgment for complainants against Lehman Morgan, Jr. for property damage to the said automobile.'

The prayer of the bill sought a temporary injunction against Lt. George C. Wallace, Director Floyd Mann and State Treasurer Baggett restraining them 'from making any disbursements or in any way disposing of said security deposited by said Lehman Morgan, Jr. pending further order of this Court; and will further enjoin Respondents Lehman Morgan, Jr., L. H. Walden, Frances Lindsey Woods and Ramon L. Farnell or their heirs, assigns, successors or purchasers in interest from withdrawing any funds deposited with the State of Alabama as security for damages growing out of the above accident of February 10, 1957; that upon a final hearing in this cause your Honors will award security heretofore filed by Lehman Morgan, Jr. with the State of Alabama to your Complainants for satisfaction of their judgment for property damages to the automobile belonging to Leon Lindsey.'

The court overruled the appellants' demurrers and issued the temporary restraining order pending further order of the court upon a full hearing of the merits. Respondents Wallace, Mann and Baggett appealed.

The one assignment of error is that the court erred in overruling respondents' demurrers to the bill of complaint. This assignment is sufficient, but under such assignment, we treat only those grounds of demurrer insisted on in brief of appellant as having been well taken. Hutto v. Copeland, 265 Ala. 482, 92 So.2d 30.

Section 2(a) of the Safety-Responsibility Act provides as follows:

'The director shall administer and enforce the provisions of this Act and may make rules and regulations necessary for its administration and shall provide for hearings upon request of persons aggrieved by orders or acts of the director under the provisions of this Act.'

Section 10 of the Act provides, in part, as follows:

'Security deposited in compliance with the requirements of this Act shall be placed by the director in the custody of the state treasurer and shall be applicable only to the payment of a judgment or judgments rendered against the person or persons on whose behalf the deposit was made, for damages arising out of the accident in question in an action at law, begun not later than one year after the date of such accident, or within one year after the date of deposit of any security under subdivision 3 of section 7, or to the payment in settlement agreed to by the depositor, of a claim or claims arising out of such accident. * * *'

Section 1(b) defines 'judgment' as:

'Any judgment which shall have become final by expiration without appeal of the time within which an appeal might have been perfected, or by final affirmation on appeal, rendered by a court of competent jurisdiction of any state or of the United States, upon a cause of action arising out of the ownership, maintenance or use of any motor vehicle, for damages, including damages for care and loss of services, because of bodily injury to or death of any person, or for damages because of injury to or destruction of property, including the loss of use thereof or upon a cause of action on an agreement of settlement for such damages.'

Ground 8 of the de...