All American Life and Casualty Co. v. Dillard , 287 Ala. 673 ( 1971 )

PER CURIAM.

Appellee recovered judgment against appellant on a contract of disability insurance. Defendant appeals and seeks a reversal of the judgment.

ON THE MOTIONS

We concur in appellee’s assertion that the judgment denying defendant’s (appellant’s) motion for a new trial is invalid and has no legal significance.

The motion -was presented to the trial judge on April 19, 1968, at which time the judge entered an order continuing the motion for hearing on May 15, 1968. Without any further order of continuance or judicial indication in the record that the motion was heard on May 15, supra, or that the same was submitted and taken under advisement on the date set for the hearing, or otherwise became lodged in the breast of the court, the trial court, on June 20, 1968, entered a judgment overruling and denying the motion.

This action of the trial court was without legal authority for that the motion was discontinued. Title 13, § 119, Code of Ala., Recompiled 1958; Moving Picture Machine Operators Local No. 236, et al. v. Cayson, 281 Ala. 468, 205 So.2d 222(14) ; Moore v. Ashe, 269 Ala. 359, 113 So.2d 678.

In view of the end results of this appeal as appear in this opinion, we pretermit consideration of appellant’s motion to amend citation and notice of appeal, security for costs and supersedeas bond; also appellee’s motion to dismiss the appeal.

PETITION OF APPELLEE FOR WRIT OF CERTIORARI

It appears from the record that appellant’s written charges 2, 3, 4 and 5 were not, at the time of the trial, marked “Given” or “Refused”, and signed by the judge in compliance with Title 7, § 273, Code of Ala. 1940.

Failure to comply with this statutory mandate was the subject of mandamus proceedings in this court. See In re All American Life and Casualty Company v. Moore, Jr., as Judge, etc. (Ex parte All American Life and Casualty Company), 286 Ala. 492, 242 So.2d 661.

Petitioner (appellant) invoked this remedy to compel the trial judge to write or mark “Refused” on each of said charges 2, 3, 4 and S (also on 1, 6 and 7) or appear at a time to be designated by this court and show cause why he should not be required to do so. Also petitioner prayed for a peremptory writ.

This court granted the alternative writ or rule nisi, but after answer filed, following issuance of the rule nisi, this court took cognizance of the fact that in the special prayer petitioner did not pray that the respondent judge be required to sign his name to each of the seven charges after having marked each of them refused. However, such relief was included in the rule nisi pursuant to petitioner’s prayer for general relief.

We observed in All American Life and Casualty Company v. Moore, supra, as follows :

“We do not feel that the petitioner has shown a clear legal right to justify the issuance of the peremptory writ. True, the petition avers and the answer does not deny that the seven charges were not given, and in Paragraph 6 the petitioner avers categorically that the respondent judge refused to give those charges, but we think that categorical allegation is refuted by the averment of the answer to the effect that the respondent judge has no independent recollection of the charges being presented to him. It may well be that the charges were delivered to the respondent judge and that he placed a rubber hand around them, as is alleged in the petition, and failed to give them to the jury. But it does not follow that he read the charges other than perhaps Charge No, 1 and 'refused’ them because they did not state correct principles of law or were not otherwise entitled to be given. We do not think that a trial judge should be ordered by this court to mark ‘refused’ and to sign a charge which he has not actually refused after giving the charge consideration.

“We agree with able counsel for petitioner that the mere writing of the word ‘refused’ and the name of the judge on a requested charge is a ministerial act. But that act must follow an act judicial in character, -the determination by the judge of the correctness or incorrectness of the requested charge. We cannot say that petitioner has shown that the trial judge made such a judicial determination except perhaps as to Charge No. 1. The judge may have negligently or inadvertently failed to consider the other charges but if so, we do not feel that we would be justified on those grounds in ordering him to refuse the charges after the completion of the trial, the denial of the motion for new trial where the question was not raised, and after the perfection of an appeal to this court. We do not have in this case a situation where we could order the respondent judge to exercise his judicial discretion or judgment even though it be conceded that he failed to perform a' duty which is judicial in character. See State of Alabama ex rel. Pinney v. Williams, 69 Ala. 311, 319.

“If counsel who represented the petitioner in the trial court did not feel called upon to investigate to see whether or not his requested charges had in fact been properly refused before the case went to the jury, we feel that he should have at least made investigation concerning the failure of the trial court to give those charges before the filing of his motion for a new trial which, as we have shown above, averred that the trial court refused to give those charges.

“The peremptory writ of mandamus is denied.”

Thus, it appears that petitioner averred that the charges were refused, but we held that such allegation was refuted by Judge Moore’s averments in his answer that he had no independent recollection of the charges being presented to him. Hence, and for other reasons, we declined to order him to mark the charges “refused”, and to sign his name thereto when he had not actually refused them after giving them consideration.

But, it appears in the record that on January 8, 1971, following the publication of our decision on December 23, 1970, denying issuance of a peremptory writ, the trial judge, at appellant’s request, marked “refused” and signed his name thereto on each of charges 2, 3, 4 and 5; that on January 20, 1971, the transcript of record in this case was filed with this court containing said charges. These charges, as they appear in the record before us, were each marked “refused” and purport to have been signed by the trial judge, Bob Moore, Jr.

It thus appears that the trial judge formed and exercised judicial judgment that the charges 2, 3, 4 and 5 were not valid or correct. He then performed a ministerial duty of marking these charges “refused” and signed his name thereto.

This purported judicial judgment was reached after appellant filed its petition here on October 3, 1968, for a rule nisi and a peremptory writ to compel the trial judge to perform a ministerial act of marking each charge “refused” and signing his name thereto. At that time, according to respondent’s answer to the petition filed here November 6, 1968, and in the opinion of this court (All American Life and Casualty Company v. Moore, supra) he had not made a judicial determination as to the correctness of these charges.

Such judicial determination ' comes too late, because an appeal to this court had been taken by All American. Jurisdiction of this court attached on July 12, 1968, at which time security for costs and a Supersedeas Bond had been filed and approved. Such filing and approval perfected an appeal. Title 7, § 766, Code of Ala.1940; Austin v. City of Anniston, 243 Ala. 214, 8 So.2d 410; McCulley v. Stroud, 286 Ala. 515, 243 So.2d 28; Maya Corporation et al. v. Smith et al., 239 Ala. 470, 196 So. 125.

Under the facts here obtaining and in view of our holding in All American, etc. v. Moore, etc., supra, we conclude that the trial judge had been divested of his jurisdiction when he made a' judicial determination, if in fact one was made, refusing the charges, and impressed each charge, 2, 3, 4 and 5, with the word “refused” and signed his name thereto.

It is to be noted that' this court takes judicial knowledge of its own records. Vol. 9, Ala.Dig., Evidence, ^43; Jackson, etc. v. Chemical Nat. Bank, 215 Ala. 538, 112 So. 105(7).

We think and so hold that the issuance of a writ of certiorari to the Circuit Clerk of Marion County to send up an amended transcript of the record which does not contain written charges 2, 3, 4 and 5 as the same appear on pages 15 and 15A of the transcript (with the words, “Refused, Bob Moore, Judge” thereon), would be unnecessary procedure even if allowable. The decision of this court on the original mandamus petition, supra, and the records before us, justify this court in treating the words, “Refused, Bob Moore, Judge” as surplusage and without lawful efficacy or significance. The charges, in the opinion of this court, were never lawfully ruled on prior to this appeal. Petition for certiorari here filed by appellee, to be directed to the Clerk of the Circuit Court of Marion County, is denied.

ON DEMURRER TO COMPLAINT

Assignment of Error No. 5 asserts that the trial court erred in overruling defendant’s (appellant’s) demurrer to plaintiff’s complaint. We will consider only those grounds that are adequately argued.

Ground 2 charges that the complaint fails to state a cause of action against defendant. This ground is general and contravenes Title 7, § 236, Code of Ala.1940. See also United Insurance Company of America v. Pounders, 279 Ala. 410, 186 So.2d 125; Caffee v. Durrett, 282 Ala. 71, 209 So.2d 210; Bright v. Wynn, 210 Ala. 194, 97 So. 689(2) ; Ala.Dig., Vol. 2, Appeal & Error, ®=5231(2). This ground has no merit.

■■[6] Ground 3 of the demurrer states that the averments of the complaint are merely conclusions of the plaintiff with no facts alleged to support said averments.

This ground is also general and without merit. Title 7, § 236, Code of Ala.1940, stipra; Johnson v. Ralls, 286 Ala. 565, 243 So.2d 673; Central of Georgia Ry. Company v. Hinson, 262 Ala. 223, 78 So.2d 286(7).

■ Ground 11 charges said count fails to apprise the defendant of any breach of the contract of insurance between defendant and the plaintiff; but the complaint alleges a breach of contract.

Ground 12 charges that the allegations of the complaint by the plaintiff fail to apprise the defendant what the defendant is to defend.

This ground is general and contravenes Title 7, § 236, Code 1940. See United Insurance Company of America v. Pounders, supra (2).

Ground 13 asserts that the allegations of the complaint fail to show that there was a repudiatioh of the contract of insurance.

The complaint alleges that on or about, to-wit, August 15, 1967, “the Defendant wrongfully and tortiously and without just cause or good excuse did cancel the Plaintiff’s said policy of insurance, and thereby the Defendant insurance company tortiously and wrongfully breached the same and became liable to the plaintiff for the present value thereof on the date to which the Defendant has paid its monthly payments, as required by the terms and conditions of the said policy.”

In Otterbein v. Babor & Comeau Co., 272 N.Y. 149, 5 N.E.2d 71, 72, it was held that “cancellation” of insurance contract means termination of insurance in accordance with the cancellation clause of the policy by insured, insurer or both; to cancel being “‘to annul or destroy; to revoke or recall.’ ”

We think that the words “wrongfully * * * and without just cause or good excuse did cancel the plaintiff’s said policy of insurance * * * ” are broad enough to import repudiation of the policy by defendant (appellant).

The judgment of the trial court in overruling the demurrer was free of error as we view the argued grounds.