Summary
In Collins v. Mobile Ohio R. Co., 210 Ala. 234, 97 So. 631, the interrogatory required defendant to attach the original or copies of correspondence and of drafts, checks, releases, receipts, or other documents involved pertinent and affecting the defendants. It is not for defendant to determine whether they are pertinent, but for the court.
Summary of this case from Ex Parte RowellOpinion
2 Div. 797.
June 30, 1923. Rehearing Denied October 18, 1923.
Appeal from Circuit Court, Bibb County; S. F. Hobbs, Judge.
Jerome T. Fuller, of Centreville, and Ball Beckwith, of Montgomery, for appellant.
The insurance company became subrogated to Collins' claim against the railroad company, and it was not necessary that it have an assignment or subrogation agreement. So. Ry. v. Stonewall Ins. Co., 163 Ala. 161, 50 So. 940; Coffman v. L. N., 184 Ala. 474, 63 So. 527; Wyker v. Texas Co., 201 Ala. 584, 79 So. 7, L.R.A. 1918F, 142; Brighthope v. Rogers, 76 Va. 443. A release given by the insured to the wrongdoer cannot be set up as a defense to an action by the insurer. Hart v. Western, 13 Metc. (Mass.) 99, 46 Am. Dec. 719; Home Ins. Co. v. West Tr. Co., 33 How. Prac. (N.Y.) 102; Monmouth Ins. Co. v. Hutchinson, 21 N.J. Eq. 107; Conn. Ins. Co. v. Erie, 73 N.Y. 399; 29 Am. Rep. 171; Pittsburgh v. Home Ins. Co., 183 Ind. 355, 108 N.E. 525, Ann. Cas. 1918A, 828; Vance on Ins. 426; 5 Cyc. 960; Ivy Coal Co. v. Long, 139 Ala. 535, 36 So. 722; Lehman v. McQueen, 65 Ala. 570; Barbour v. Washington Ins. Co., 60 Ala. 433; Steele v. Thompson, 62 Ala. 323. Proof that property was destroyed or damaged by fire having escaped from a passing engine is prima facie evidence of negligence in construction or management of the engine, and casts on defendant the burden to rebut. L. N. v. Malone, 109 Ala. 509, 20 So. 33; L. N. v. Marbury, 125 Ala. 237, 28 So. 438, 50 L.R.A. 620; L. N. v. Marbury, 132 Ala. 520, 32 So. 745, 90 Am. St. Rep. 917; Coffman v. L. N., supra; So. Ry. v. Dickins, 161 Ala. 144, 49 So. 766.
Foster, Verner Rice, of Tuscaloosa, and Lavender Thompson, of Centreville, for appellee.
Neither the interrogatories nor the answers are set out in the bill of exceptions, and appellant's assignments of error based thereon should not be considered. Jones v. Manier, 102 Ala. 676, 15 So. 437; Bostwick v. Beach, 18 Ala. 80. Appellee was under no legal duty to give information as to the matters inquired about in the interrogatories. Culver v. Ala. Midland, 108 Ala. 330, 18 So. 827; Russell v. Bush, 196 Ala. 309, 71 So. 397. Montgomery L. T. Co. v. Harris, 197 Ala. 358, 72 So. 619. All the interrogatories, failure to answer which was made the basis of appellant's motion, were included conjunctively in the same motion, and, if any single interrogatory called for immaterial testimony, the trial court was justified in overruling the motion. Russell v. Bush, supra.
The trial was had on original count 1 and amended counts 2 and 3. The defendant pleaded the general issue with leave to give in evidence any matter which would be admissible if pleaded, and with like leave on the part of plaintiff to so reply. Tenn. Valley Bank v. Valley View Farm et al., ante, p. 123, 97 So. 62.
Count 1 claimed damages for the negligence of defendant in setting fire to and destroying. Collins' buildings and contents to the injury of Collins, and that said property was insured by the Pennsylvania Fire Insurance Company against loss or damages to the extent of the amount averred to have been paid by that insurance company to assured. Thus was the right of recovery rested upon subrogation, independent of any subrogation receipt or assignment of claim by the assured. The third count adopts the averments of the second count, and concludes with the averment that Collins had transferred and assigned to the Pennsylvania Fire Insurance Company the insurance on which suit is brought for damages claimed in the destruction of the insured property. The extent or amount of insurance was specifically indicated and averred to have been paid to assured by the insurance company.
Before entering upon the trial, plaintiff called the court's attention to interrogatories propounded under the statute, that there was failure in answers, and moved the court to require the defendant to answer all interrogatories (and specifically Nos. 2, 3, 4, 5, 7, 8, and 9), which motion the court overruled, and plaintiff duly excepted. The motion was in proper form. If the failure was of matter required by the statute the court may (1) attach the party and cause full answer to be made in open court, or (2) tax him with costs and continue the cause until full answer is made, or (3) direct a nonsuit or judgment by default, or enter an appropriate decree. Code 1907, § 4055; Russell v. Bush, 196 Ala. 309, 317, 71 So. 397.
The bill of exceptions recites:
"The plaintiff having filed in said cause certain interrogatories to be answered by the defendant as required by the statute, moved the court to require the defendant to answer all the interrogatories propounded by him to the defendant on July 15, 1921, which had not already been answered by the defendant, said interrogatories and said answers being on file and made a part of the record in this cause, but the court overruled said motion, and to said ruling the plaintiff then and there duly and legally excepted.
"The plaintiff then moved the court to require the defendant to answer interrogatories numbered 2, 3, 4, 5, 7, 8, and 9, being part of the interrogatories above referred to which had not been answered by the defendant, but the court overruled said motion, and to said action the plaintiff then and there duly and legally excepted.
"The plaintiff then moved the court to grant him a continuance on the ground of the failure of the defendant to answer said interrogatories and the refusal of the court to compel the defendant to answer them and excepted, but the court overruled said motion, to which action the plaintiff then and there duly and legally excepted."
The matter for which statutory discovery was thus sought was highly important in the preparation of plaintiff's case, and answers should have been compelled, as provided and required by statute. Russell v. Bush, supra. For the failure of the court to compel compliance with the statutory methods (Code, § 4049) to secure the important information sought by plaintiff, the judgment of the circuit court will be reversed.
Since the cause will be retried, it is well to note plaintiff's request in writing for the following charge, which was refused:
"The court charges the jury that when the Pennsylvania Fire Insurance Company paid said Collins the $3,500 insurance, it immediately became entitled to the first $3,500 of any claim or demand he had, if any, against the defendant, arising out of the destruction of the inspired property, and any settlement made between said Collins and defendant thereafter would not prevent plaintiff from recovering herein if he was otherwise entitled to recover."
The charge assumes the undisputed fact that the insurance company paid Collins the $3,500, and that when so paid the insurance company became entitled to such amount of Collins' claim (if such he had) against the defendant. This was true as a matter of law and under the subrogation agreement and assignment in evidence. If the liability of defendant had been merely $3,500, the insurance company would have been entitled to all of it, and, if less than that amount, to such sum. If there was liability on the part of the defendant company other than the $3,500 paid by the insurance company, the former company, knowing of the insurance and of such adjustment and settlement, was primarily liable to the insurance company on the subrogated contract. The charge merely sought to instruct the jury that any settlement made by Collins with the railroad company without the assent and concurrence of the insurance company would not prevent Collins (for the use of the Pennsylvania Fire Insurance Company) from recovering in a suit in its behalf, if otherwise entitled to recover. This was a proper explanatory charge in view of the evidence that, after the payment to the insured of the amount of the insurance and the assignment of his claim for such amount to the insurance company, the former made settlement with the railroad company of his claim.
In Southern Ry. Co. v. Stonewall Ins. Co., 163 Ala. 161, 164, 50 So. 940, this court said:
"* * * Without any statute, the insurance company, on paying the insurance for the property insured and alleged to have been tortiously destroyed by the railroad company, would be subrogated to the rights of the insured or owners of the property, against the railroad company, if any there were, to make good its loss, and could certainly sue in its own name, or in the name of the insured, for its use."
See, also, Coffman v. L. N. R. R. Co., 184 Ala. 474, 480, 63 So. 527; Wyker v. Texas Co., 201 Ala. 585, 79 So. 7, L.R.A. 1918F, 142. The principle on which such authorities rest is that the insurer and insured are considered as one person, and the distribution of the proceeds is a matter wholly between the insurer and insured (Long v. K. C. M. B. R. R. Co., 170 Ala. 635, 54 So. 62), and does not concern the wrongdoer or furnish him with a defense (Coffman v. L. N. R. R. Co., supra; Wyker v. Texas Co., supra). See, also, Brighthope v. Rogers, 76 Va. 443, 448; Hart v. Western, 13 Metc. (Mass.) 99, 46 Am. Dec. 719: Home Ins. Co. v. Western Transportation Co., 33 How. Prac. (N.Y.) 102.
A statutory provision (Code, § 5159) is that claims against railroad companies for injury to property may be assigned in writing, and each successive assignee thereof may sue thereon in his own name. Parnell v. Southern Ry. Co., 199 Ala. 470, 74 So. 437. When the settlement was made by defendant with Collins for his damages, it was with a knowledge of the foregoing statute, the existence of the insurance, and that an adjustment of the insurance was being made. Under such circumstances, given in evidence, the charge should have been given at plaintiff's request.
The other questions presented may not occur on another trial when all the facts are presented pursuant to the discovery sought.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.
On Rehearing.
Interrogatories filed by plaintiff were under the statute that provided for a discovery at law. The same, with such answers that were made, were parts of the record proper.
The case of a judgment or ruling on the answer of garnishee, made the subject of the earlier decisions of this court, is different from the instant case. In Jones v. Manier, 102 Ala. 676, 15 So. 437, the consideration of this court was declined for the failure to make the same a part of the bill of exceptions; and in Bostwick Kirkland v. Beach, 18 Ala. 80, the declination was to render judgment against the garnishee on his answer, and it was rested on the fact that judgment against the "defendant in attachment" had not been rendered.
The later decisions recognize the right of the garnishee to file his answer in writing, and held that where so filed it was considered "as a part of the record of the lower court, without any reference to it in the judgment entry." First Nat. Bank v. Dimmick, 177 Ala. 571, 58 So. 658. All motions made in writing in the circuit court in any proceeding at law upon appeal become a part of the record. Gen. Acts 1915, p. 598; Stover v. State, 204 Ala. 311, 85 So. 393; Eutaw Ice, etc., Co. v. McGee, 17 Ala. App. 18, 81 So. 354. On the original hearing we had recourse to the interrogatories and answers on file, for an understanding of the rulings of the court on the motions, to which exceptions were reserved.
There was a failure to answer certain of the interrogatories indicated. Though they were numbered, they related apparently to the general subject inquired about. The seventh and eighth interrogatories called for two classes of information: (1) The private correspondence and reports (indicated) relating to the investigation of the fire on behalf of defendant by its agents; and (2) that of the settlement made by defendant and the assured.
In Culver, Adm'r, v. A. M. Ry. Co., 108 Ala. 330, 333, 334, 18 So. 827, 830, this court said of the statutes in question (Code 1907, §§ 4049, 4057; Code 1886, §§ 2816-2820):
"Unsworn ex parte statements of persons not parties are merely hearsay and prima facie inadmissible. These reports made subsequent to the injury, were not competent as original evidence for any purpose. The reason assigned for withholding the reports, may not have been sufficient, if the reports contained competent evidence, but the withholding of statements which were not admissible as evidence, gave the plaintiff no right to move for a judgment by default." (Italics supplied.)
The declaration contained in Montgomery Light Traction Co. v. Harris, 197 Ala. 358, 359, 72 So. 619, was merely that interrogatories propounded to an adverse party in a civil suit must be pertinent to the issues or the matter in dispute between the parties to be of statutory requirement for answer. These authorities have application to the first class of documents inquired about.
Inspection of interrogatories 7 and 8 discloses that the same are material and pertinent to the issues being tried: (1) Whether there was liability on defendant's part; and (2) whether defendant had knowledge or notice of the insurance. Cain Lumber Co. v. Standard Dry Kiln Co., 108 Ala. 346, 18 So. 882. Hence the pertinent inquiry of the nature of the payment, and contents of the receipt and release taken on the settlement with Collins. It was also competent to require a description of such lost or destroyed documents, if such had caused the failure to attach, and the substance of their contents. Potts v. Coleman, 86 Ala. 94, 100, 5 So. 780; Goodall-Brown Co. v. Ray, 168 Ala. 350, 53 So. 137. The evidence sought was of a declaration affecting defendant's liability for negligence, and of its notice, or the lack thereof, of insurance before settlement with Collins. The material and immaterial matters inquired about and designated in subdivision 7 are not so blended or interdependent as not to be separable in the preparation for and the making of answer under the statute to such of the interrogatories as are pertinent. Sparks v. J. S. Reeves Co., 165 Ala. 352, 51 So. 574. Whether they are competent is a matter for the court, and not for the party. Southern Ry. Co. v. Bush, 122 Ala. 472, 26 So. 168; L. N. R. R. Co. v. Hall, 91 Ala. 118, 8 So. 371, 24 Am. St. Rep. 863; Calhoun v. Thompson, 56 Ala. 166.
There was no improper failure to answer interrogatories 2 and 3, inquiring of other trains passing Lawley at other times; this inquiry was not pertinent to the issue. Head v. Robinson, Norton Co., 191 Ala. 352, 67 So. 976.
Interrogatory 4 was answered at the trial in response to the order of the court. The date of service of a copy of the interrogatories on defendant is not indicated by this record. The motion for a continuance did not acquaint the trial court of that date under the provisions of section 4055 of the Code. It is true the provisions of the statute had for its purpose a discovery to aid in the preparation for the trial.
Interrogatory 5 should have been answered. The identity of the engine causing the fire should have been disclosed.
Interrogatory 9 was declined of answer "on advice of counsel." In Alabama, etc., Co. v. Heald, 154 Ala. 580, 595, 45 So. 686, 690, this court said:
"The trial court erred in permitting the plaintiff to prove that immediately after the death of the intestate the defendant placed in the mine certain water pipes. Going v. Ala. Steel Wire Co., 141 Ala. 537, 37 So. 784; 1 Wigmore on Evidence, § 283."
The case of Going v. Ala. Steel Wire Co., 141 Ala. 537, 551, 37 So. 784, 789, decided that there was no error in excluding evidence that —
"After the injury to plaintiff some other appliance * * * was used. As an independent fact to prove negligence in using the flat stick at the time of the accident the fact was not competent, and the witness had not testified on his direct examination to any fact or opinion which could form a predicate for this proposed evidence on his cross-examination."
This rule was followed in Bedgood v. T. R. Miller Mill. Co., 202 Ala. 299, 301, 80 So. 364; Burnwell Coal Co. v. Setzer, 191 Ala. 398, 67 So. 604; Porter v. T. C. I. R. Co., 177 Ala. 406, 59 So. 255. There was no error in declining to answer that interrogatory.
We do not think the fact that the plaintiff moved the court to require the defendant to answer interrogatories 2, 3, 4, 5, 7, 8, and 9, and made the motion for a continuance, on the ground of the failure of the defendant to answer "said interrogatories," brought the ruling within the rule applied in Russell v. Bush, 196 Ala. 309, 71 So. 397. The statutory duty of the defendant was to fully and truly answer all proper interrogatories.
The rehearing is denied.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.