Wood v. Casualty Reciprocal Exchange

• Decision Date: 31 May 1973
• Citation: 279 So.2d 506,291 Ala. 243
• Parties: Charles WOOD, as Father of Alice Jean Wood, a Deceased minor and Alfred Dallas, Jr. v. CASUALTY RECIPROCAL EXCHANGE, a Reciprocal Organized Under the Laws of Missouri. SC 142.
• Court: Alabama Supreme Court

Page 506

279 So.2d 506

291 Ala. 243

Charles WOOD, as Father of Alice Jean Wood, a Deceased minor and Alfred Dallas, Jr. v. CASUALTY RECIPROCAL EXCHANGE, a Reciprocal Organized Under the Laws of Missouri.

SC 142.

Supreme Court of Alabama.

May 31, 1973.

Rehearing Denied July 5, 1973.

Knox M. McMillan, Auburn, for appellant Charles Wood.

Walker, Hill, Gullage & Adams, Opelika, for appellant Alfred Dallas, Jr.

Miller & Hoffmann, Montgomery, Samford, Torbert, Denson & Horsley, Opelika, for appellee.

McCALL, Justice.

The appellee urges that this appeal be dismissed because of the failure of the record to disclose service of citation, notifying the appellee of the appeal. Pursuant to a writ of certiorari, issued out of this court, the register in chancery of the Circuit Court of Lee County, Alabama, in which this cause originated has certified to this court citation on appeal in due form directed to one of the attorneys of record for the appellee Casualty Reciprocal Exchange with the sheriff's return endorsed thereon, showing the execution of service on the appellee. This evidences sufficient compliance with the requirements of Tit. 7, § 801, Code of Alabama, 1940. The motion to dismiss is denied.

The appellee, Casualty Reciprocal Exchange, a reciprocal organized under the laws of Missouri, filed its bill of complaint on the equity side of the circuit court against Charles Wood, as father of Alice Jean Wood, a deceased minor, and Alfred Dallas, Jr. The trial of the issues of fact was had before a jury.

The appellant Wood, together with Dallas, who joins in the appeal are aggrieved over the adverse order or decree of the trial court which granted a motion of the appellee insurance company to set aside the verdict of the jury returned in their favor as to ownership of an automobile and insurance coverage, thereon. The order set aside the judgment award, and the decree of the court entered thereon, and, also restored the case to the active trial docket of the equity court for a retrial, unless an appeal should follow the said order and judgment. The basis for this order was the court's opinion that the jury's verdict was against the great weight and preponderance of the evidence. It is the foregoing order or decree that Wood and Dallas seek to have reviewed on appeal, or, in the alternative, by mandamus, should they have mistakenly considered an appeal to be appropriate. Hereafter, these respondents in the court below will be referred to as appellants.

We think that the order here appealed from is not such as will support an appeal. In Wood v. Finney, 207 Ala. 160, 92 So. 264, we held that an order granting a motion to vacate and set aside a final decree and reinstating the cause on the docket was not a final decree nor an interlocutory order of such character as to authorize an appeal. However, mandamus may lie as the appropriate remedy, if the order shows on its face that it is void. The order here under attack shows on its face that the jury found the issues of fact presented to it in favor of the appellants. The order further shows that the appellants were granted relief under their cross-bills in the equity court's final decree of May 9, 1972, pursuant to the jury's verdict; that the appellee's application for rehearing or motion to vacate and set aside that verdict and the final decree entered thereon was not filed until May 30, 1972; and that the issues of fact presented were 'issues out of chancery,' affording the appellants a jury trial as a matter of right. As we will undertake to demonstrate at a later point in this opinion, we think this order of the trial court, vacating and setting aside its final decree in this cause, is erroneous on its face. Therefore mandamus is the proper procedure to have it vacated. Capps v. Norden, 261 Ala. 676, 75 So.2d 915.

The bill in equity, which the appellee insurance company filed against its named insured Dallas and his judgment creditor, Wood, seeks a declaration of rights, status, or other legal relations under its automobile liability policy of insurance, (1) as to whether or not Dallas, the named insured in the policy, was entitled to its protection and coverage against liability arising out of an accident which resulted in the death of Wood's minor daughter, Alice Jean Wood, and, (2) as to whether or not the appellee insurance company is legally obligated under the policy to pay the monied judgment that the court of law rendered against Dallas for the resulting death of Wood's daughter.

The principal issues between the parties, made by their pleadings and the evidence in this case were: (1) Did the insured Dallas give the insurer timely and sufficient notice of the accident as required by the policy and the applicable law, and (2) was the automobile, involved in the one car accident, covered by the policy of insurance.

The evidence as to the giving of proper and timely notice was in conflict, but resolved ultimately by the court in favor of Dallas and Wood, and is not here raised by cross-assignment.

It was undisputed that the automobile involved in the fatal accident was not specifically described as an insured vehicle in the policy of insurance, but its ownership was disputed. Dallas and Wood offered evidence to prove that the accident automobile was a substitute vehicle within the provisions of the insurance policy, a covered automobile being then under repair, and, that by reason of this, the automobile involved, which he contended was not owned by him, but by his daughter, was in fact an insured vehicle under the policy.

The policy of insurance in question contained the following pertinent definition of the word 'automobile':

'Temporary Substitute Automobile--under coverages A, B and division 1 of coverage C, an automobile not owned by the named insured or his spouse if a resident of the same household, while temporarily used as a substitute for the described automobile when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction:'

On the issues of fact the appellants, Dallas and Wood, who filed separate cross-bills, demanded a trial by jury. This was granted as a matter of right. State Farm Mutual Automobile Ins. Co. v. Bodiford, 281 Ala. 510, 205 So.2d 589, Major v. Standard Accident Ins. Co., 272 Ala. 22, 128 So.2d 105. Tit. 7, § 164, Code of Alabama, 1940, as amended. The Declaratory Judgment Act, Tit. 7, § 164, supra, provides:

'When a proceeding under this article involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.'

In Alabama Electric Cooperative, Inc. v. City of Luverne, 282 Ala. 616, 618, 213 So.2d 676, 677, we said:

'The parties to a declaratory judgment proceeding in equity have a right to trial by jury of all issues of fact presented if the same issues would be so triable when presented in common-law actions. Major v. Standard Accident Ins. Co., 272 Ala. 22, 128 So.2d 105; Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So.2d 234.'

The case of Bodiford, supra, was one in which the insurance company petitioned in equity, for declaratory relief to determine if it was obligated to defendant Bodiford, under a liability insurance policy, issued to Young, the named insured in a wrongful death action by the executor of the deceased Palmer. The parties stipulated and agreed that the only issue was: Was the death of Palmer caused by an intentional act of Bodiford in the use of Young's automobile or was the death caused by an accident as insured against in the policy? A jury trial was demanded and obtained for the trial of the factual issues. The court said:

'* * * Such trial by jury was granted as a matter of right. Major v. Standard Accident Insurance Company, 272 Ala. 22, 128 So.2d 105(3). The verdict was in no sense advisory. * * *' (Bodiford, supra, 281 Ala. at p. 511, 205 So.2d at p. 590.)

In a declaratory judgment proceeding in equity the court in Major v. Standard Accident Ins. Co., 272 Ala. 22, 128 So.2d 105, held that the determination of the issue of ownership of an automobile was one of fact to be decided by a jury.

In Bodiford, supra, a declaratory judgment case, in equity, the jury returned a verdict in favor of the respondents, Bodiford and the executor. The court said that the decree of the court was responsive to and based on a jury's verdict at law on an 'issue out of equity,' citing Howard v. Ridgeway, 225 Ala. 106, 142 So. 403(1), wherein the court, in defining what is meant by 'an issue out of chancery' said it was those equitable cases 'wherein the parties are entitled, as matter of right, to a trial of the issues by jury, as contradistinguished from cases wherein the trial by jury and the verdict are merely advisory. Lewis v. Martin, 210 Ala. 401, 98 So. 635.' See also Owens v. Washington, 260 Ala. 198, 69 So. 694. In such cases the trial of the issues by jury partake of the essence of a trial at law. A motion to set aside the verdict and award a trial de novo is essential to a review by the chancellor of the rulings on the trial of the issues before the jury. Howard v. Ridgeway, supra; Karter v. East, 220 Ala. 511, 125 So. 655; Hale v. Cox, 222 Ala. 136, 131 So. 233. As to the point in time of procedure when the motion to set aside the verdict of the jury and grant a new trial must be made, the court in Owens v. Washington, 260 Ala. 198, 201, 69 So.2d 694, said that after the jury has returned its verdict, the aggrieved party must file such motion before the equity court has entered its final decree thereon, and following the principle referred to in Jester v. Jester, 225 Ala. 138, 142 So. 523, and Ex parte Curry, 248 Ala. 384, 27 So.2d 630, that unless the verdict is vacated, the verdict, responding to the issues submitted, is binding on the equity court, and the equity court must follow the verdict in...