Capital Securities Co. v. Davis , 12 Ala. App. 498 ( 1915 )

PELHAM, P. J.-

The Supreme Court, in an opinion rendered November 7, 1914, in a case in which the same party is appellant as in the case before us on this appeal, has passed upon the fundamental question presented by this appeal. See Capital Security Co. v. Gilmer, 67 South. 258.

Since the rendition of the opinion in that case, and after.the Supreme Court had overruled the appellee’s application for a rehearing, the appellee has filed an additional brief in this case making the contention that the Gilmer Case is not controlling because of a difference in the evidence in the two cases as shown by the evidence set out in tbe bills of exceptions. Tbe difference pointed out, and tbe distinction songbt to be made is based on tbe contention that in tbe instant case there is evidence to show that tbe appellee bad been fraudulently induced by tbe misrepresentations of tbe company’s agent as to its contents to sign tbe application for tbe loan contract, and that in tbe Gilmer Gase there was no such evidence. Tbe appellee urgently insists that tbe opinion in tbe Gilmer Gase is “rested upon this fact.”

We do not so read the opinion in that case. It seems to us that tbe .bolding there is “rested” principally, if not altogether, on tbe proposition that no confidential, fiduciary, or special relation was shown to exist between tbe parties entitling tbe appellee to avoid tbe obligation entered into upon tbe ground of fraud. Tbe writer of tbe opinion of tbe court in tbe Gilmer Gasereferring to tbe evidence before tbe court on that point, says: “Under the evidence in this case there is no legally sufficient reason shown by tbe plaintiff for her failure to read her application, and we see no reason why, under tbe evidence in this case, she should be permitted, upon tbe ground of fraud, to defeat tbe defendant’s recovery.”

Upon this proposition, also, as tbe “one material element lacking” to authorize a recovery under tbe evidence, tbe case of Southern Loan & Trust Co. v. Gissendaner, 4 Ala. App. 523, 58 South. 737, is distinguished from tbe Gilmer Gase in tbe latter opinion. Tbe substantial and real question presented on this appeal, under the evidence set out in this record, brings it under the influence of this bolding in tbe Gilmer Gase on tbe cardinal proposition there involved and decided, and requires a reversal of tbe judgment of tbe trial court.

To answer tbe appellee’s contention that a distinction exists between this and tbe Gilmer Gase because of a difference in the evidence as to fraud being used to induce signing the application, we can say that an examination and comparison of the evidence set out in the bills of exceptions in the two records will not show any substantial difference between the evidence in the two cases on this point. On page 49 of the Gilmer transcript the appellee, as a witness in her own behalf, is shown by the recitals contained in the bill of exceptions to have testified that: “At the time she entered into the contract, she signed a certain paper called by Phillips [the agent] an ‘application,’ but she did not read it, nor did she ever read same.”

Following this it is shown by the further recitals in the bill of exceptions that the witness was permitted to testify, against the objection of the defendant, that she did not read the application because of her reliance on the statements of the agent, who told her his word was his bond, and that she could rely on it, and that she did rely upon it as to such statements. What these representations or statements of the agent were with respect to the contract and application in the instant case and the Gilmer Case, as shown by the two records, went to the same matters in the main .and were substantially the same in both cases. They had reference principally to the time when, and upon making what number of payments, the appellee would be entitled to receive a loan from the company.

We do not think it is essential to a disposition of this case, after the opinion in the Gilmer Case, whether the evidence in that case did or did not show misrepresentations made by the agent with respect to the application as apart from the contract, but that this was not overlooked as one of the matters relied upon and considered in the Gilmer Case is shown by the brief of counsel filed in that case, where they say (page 3) : “He [the ageist] induced Mrs. Gilmer to buy six of these contracts on his statement of what the contracts contained, and also induced her to sign a written application for these contracts, stating that the application was for the contracts as represented to her. Shortly thereafter Mrs. Gilmer, relying on this statement of what the contracts contained, and on the statement as to what the appliaa*-lion was, received from the defendant six of the contracts,” etc. (Italics supplied.)

And further on the same page: “The testimony showed that Mrs. Gilmer neither read the application nor the contracts because of her reliance on what Phillips [the agent] had told her of their contents.”

There is no material or substantial difference between the evidence in this case and that in the Gilmer Case, as applied to the principle of law involved and decided in that case, and on the authority of that case a judgment here reversing the judgment of the lower court is ordered.

Reversed and remanded.