Bankers & Shippers Ins. Co. of NY v. Blackwell

3 GO Edison. for Mrs. attorney

made with the position for this given no reason is But good reason.

and we know of no appears to- contended be further authority had Parrish Hollis B.

that Mr. in the Probate Court. make the settlement pro judgment entry But that, prima facie court shows

bate Edison, authority attorney he had Mrs. judgment of dismissal.

to consent Stephens, Ala. Hill v. Beverly v. Neuhoff,

Lambert, v. Minor State Bread Co. National So. Mrs. Bird, 145 So. 462. repudiate testimony in her did Edison agreement any way of set or attack in her

tlement claimed to have been mad.e Parrish, of which

behalf Mr. the effect right to contest

was to terminate her of the contest

will. The mere institution itself a equity court is not within aor agreement

denial of the of settlement

repudiation, thereof. Furthermore con in equity

test not filed until about six agreement

months after settlement have either a

made. There should been

timely repudiation agree settlement good delay. excuse shown for the

ment Bird, supra. Bread v.Co.

National

Affirmed.

BROWN, LAWSON, JJ., FOSTER

concur. So.2d & INS. CO.

BANKERS SHIPPERS OF NEW YORK BLACKWELL.

2 Div. 281.

Supreme Court of Alabama.

Feb.

Rehearing March Denied

3G2 Williams,

F. W. Davies & and Davies Birmingham, appellant. all of Russell, Jr., Edgar and Wilkinson & P. Selma, appellee.

Wilkinson, for all of

FOSTER, Justice. by appellee against appel-

This is a suit transportation policy lant on a of insur- property agreement. of the by parol his own benefit anee later amended Carr, 4. Demurrer owners interested. 3 and Snow v. on counts was tried Secundum, Corpus The Ala. each overruled. to those counts was Juris Insurance, p. 919, appellant 217(e); their made § contention first Am.Jur. section Ins. Co. v. Erie Phoenix sufficiency demurrer. Transp. Co., & Western U.S. August alleged the issuance Count 3 873, 876; S.Ct. 29 L.Ed. Goldstein v. by appel- transportation of a Harris, 24 Ala.App. 130 So. 313. $8,000.00 amount of appellee in lant to This not affected section goods merchandise lawful to cover the 7, Code, requiring Title the beneficial first appellee. during That belonging owner to sue on certain claims. The car November, 1948, said contract week in rier or bailee is here beneficial owner parol agreement, insurance amended right. sues admits that after This so as coverage was amended which the a loss the claim is within the statute. by plaintiff hauled lawnmowers to include Capital City Jones, Ins. Co. transit, against loss to hire, while Casualty Life & Ins. Co. overturning, the considera- goods by said Crow, 144, 231 Ala. 164 So. Goldstein 'by plaintiff on such the reliance being tion Harris, supra. v. of the noncancellation policy and amended nonpayment by de- by Appellant the defendant and it also allega insists the portion the of of unearned fendant the tions are sufficient to such show a verbal premium. contract of necessary insurance as is to be alleging in valid terms of the it. But the contention as to the de The first complaint alleges coverage that the of the allege is that it does not murrer to this count policy outstanding by agree extended the fea for added consideration sufficient ment to include by lawnmowers hauled necessity such consider The for ture to it. plaintiff for hire in while against transit But it is claim of admitted. ation is course by to goods loss said The overturning. in count is sufficient by appellee that the ed policy, added, to which this was contains by rule declared respect, measured the with the necessary addition all that as Ins. Co. v. Fire in Hartford by this Court complies 'to detail require with the 628, 430, 630. Aaron, 147 We Ala. So. 226 ments of Commercial Ins. Fire Co. v. Mor “if the principle that there referred to the ris, 506, 105 Ala. So. 34. 18 advantages and in its is bilateral by The next appellant contention made by mutual may be modified obligations, 10, sufficiency pleas 5, 6, is based on the of any without a breach agreement before 15, 11, 12, 14, 16, 17, 22, 23 24 assent than the mutual other consideration the demurrer which was to them. sustained binding ef continued parties, to its of the pleas up Those all set the terms of the Salmon, v. them.” Cowin fect both of customary usual and policy by ap- issued 285, 190; Commercial Ala. 13 So.2d 244 pellant and other insurance carriers 616, Perkins, 236 Ala. 184 So. Co. v. Credit risk, alleged cover the which it appellant 323, Richardson, 234 Ala. 178; Spencer v. assumed virtue the verbal coverage. 175 So. 278. argument The based on the insisted that count next a venbal contract governed of insurance is plain in an insurable interest not show provisions does terms and usual complaint policy lawnmowers. customary to the tiff as issued to cover such coverage risks; lawn includes such verbal contracts alleges that can sustained then plaintiff for while thus -by providing hire hauled mowers details intended to be included. Hartford plaintiff, while rule is that in transit. King, 519, Ins. Co. v. Fire 106 Ala. 17 So. hire, creates law goods carrying 707; Cherokee Brannum, Life Ins. Co. v. responsibility to owner for a certain Ala. 82 So. 175. delivery, a carrier either as safe their has bailee, he an insur and therefore But such is not nature of the the extent of the full value verbal matter added to the written agree- able cited, Watson, stipulate Knight v. purport authorities It does not ment. expressly- Ala. So. 842: whose terms are detail, a cover- upon in but it adds agreed imposing “A statute a license tax as outstanding contract terms whose age to merely, although revenue declaring measure policy to which set forth fully are doing without such license business That is feature is the new added. sufficient affixing unlawful and a penalty a method Commercial Fire comply with the rule. enforcement, does not render void and Morris, supra; Home Ins. Co. v. v. Ins. Co. contracts made without unenforceable such Adler, license. Sunflower Lumber Co. v. Turner Co., Supply 158 Ala. So. applies legal to the The same status Am.St.Rep. 20; Morgan Whatley & objection rulings sustaining of the court in Whatley, 205 Ala. 87 So. Smith testimony by appellant offered Sharpe, 136 Am. provisions what terms and prove were the St.Rep. usual to cover risks issued police power, “But an act under the de cargoes embracing carried carriers signed business, regulate the in the amendment risk included added public against imposition, fraud stated, supra, policy. For reason requiring qualifica license as evidence rulings. was no error in those there fitness, tion and prohibiting any act of Appellant assigns respect also error penalty, under business unless license judgment sustaining of the court obtained, is first does render such con pleas 8, plaintiff’s demurrer to and 25. illegal, void, tracts and unenforceable in adopt respect following to them the We recovery compensation actions for the appellant’s in statement brief: the like. and Bowdoin v. Alabama Chemi pleas “AH of said grounded on were Co., 582, 4; cal 201 Ala. 79 So. Sunflower general proposition the that at the time the Co., Supply supra; Lumber Co. v. Turner occurred, appellee engaged loss was in 150, Armstrong, v. Woods 54 Ala. 25 Am. hauling said lawnmowers interstate com- See, Rep. also, Batson, 671.” v. Ellis 177 appellee any merce and had not secured 313, 193; 58 So. Gill Co. v. Printing permit or certificate of and convenience Goodman, 97, 250; 224 Ala. 139 So. Marx necessity from the I. C. C. to haul said 445, Lining, v. 207. lawnmowers, required by as the laws An subject, exhaustive annotation on the States; United and that hauling was said specifically with reference to insurance illegal and in violation of laws the of the contracts, given is in 132 A.L.R. with States; United and that said acts consti- supporting case of Northwestern tuted a criminal offense in violation of the Casualty Amusement Co. v. and Aetna laws States; of the United Surety Co., that such 107 132 165 Or. P.2d contrary public See, also, acts were A.L.R. 118. policy et Am.Jur. seq.; Corpus Secundum, the United States. It Insur- alleged also was that Juris ance, 242; p. alleged Rainer Western appellee contract which § had Co., Mo.App., Union Tel. 91 S.W.2d haul said illegal was lawnmowers and unen- Roddy Co., Packing v. Hill 156 Kan. forceable and null and void. This is the P.2d 215. plea substance of 25. A distinction which through runs “The trial court took the view that re- some of the insurance cases that “If in is gardless of all of allegations, these and re- property on encourage not surance does or gardless of appellee fact op- was promote an unlawful or business it is use erating law, violation of the this void, not although may collaterally it be did not invalidate insurance.” but, therewith; directly connected if it The decisions of have, this Court protects encourages the unlawful act or through cases, line of long given business, consider will be invalid.” 44 ation to a analogous to Corpus Secundum, Insurance, that here § Juris expressed, involved. It is thus p. with the Again, 132 A.L.R. 125. it is said may quite was “is true that insurance insurance effect of the if the -remotely illegality use, void connected with contract is promote illegal but, no- was in policy; trip the con- of the and the insurance public if as aid, any use, or advance respect it is assist promote illegal tract does illegal But observe may purpose. a collateral we though it have not void the vessel illegal Demary there the owner of use.” assured with was connection dependent Co., La.App., 182 So. and had an insurable interest not Royal Indemnity existence,, upon illegal transaction its an 389. -ownership possession were not and his hy Court statement this is Another contrary possession con- to law. If was its contracts, law, prohibited by specially “that trary subject to be the -to law it said not which violated or the enforcement of 132 A.L.R. 125. of valid insurance. law, of which violated the making or the regulation possession the truck in the instant was enacted law law, distinguished contrary and insurance from a law was not protection, case upon plaintiff solely purposes, would be dif- for revenue void favor created * * * (and) insurance him on When ferent from the lawn- and nonenforceaible party requires illegal an him the aid of of another carried on mowers ever case, support illegal trip his he cannot because transaction recover;” Batson, supra, and, therefore, illegal carriage Ellis v. Ala. of page Pope 58 So. at truck owner interest v. confers -o-nthe page at Co., 136 Ala. Falls Ins. So. enforceable at in- lawnmowers 'his Glenn also, See, stance, being party illegal A.L.R.2d to an -a transac- from which alone his tion insurable contract of insurance Plaintiff’s necessary -to be shown to derived prohibited by law. While the was not support claim his insurance con- regulation Transportation Act is for Motor tract. protection, th-e insurance here involved apparent -op- authority for an There we that Act. But think did violate view, explained posite which is editori- thus his could not establish case without ally in courts are 9 A.L.R.2d 185. The illegal reference to or in reliance- by primarily of -the the outcome restricted principle within the de act or transaction inquiry situ- into whether the insured sois following above. This is for the clared he property ated with reference to that only de his is insurable reason: damaged -to should it would liable loss be be pendent upon illegal made an transaction destroyed by peril against or it which act, regu by for so an which was enacted is insured. protection and not f-or revenue. lation and theory lawnmowers,- But transport that will fit our cases. not His contract steadfastly to transportation a Our cases 'hold th-e view that of them as commerce, support predi- illegal plaintiff if in was to- his case must interstate carrier right cate on a contract subjected penalty him virtue his which violates police as regu- an act 49 a law which was enacted Congress, of such of U.S.C.A. §§ fraud, public 322, against regulation for lation to 309 which was a and- imposition unfitness, especially or with a public. He cannot protection of the penalty violation, consignee for its and which is not consignor recover primarily measure, charges stand Knight for so. revenue cannot for the v. doing Knight Watson, Watson, supra, in courts. v. supra; Town of our Cottonwood v. 117, Co., supra. cited In 158 Ala. and other cases there H. M. Austin 48 So. & Headland, pronouncements, of 132 Ala. those the editorial Bluthenthal v. view supra, 249, adopted comment cannot be as our Washington T. 31 So. Booker 206, guide. Roberts, Burial Ins. Co. v. 228 Ala. v. General Electric Town Co. Pope The statement in v. Glenn broad Deposit, 179, 174 56 802. of Fort Ala. So. Batson, Co., supra, Falls Ins. and Ellis v. in with Polleys, supra, must be construed connection of Ins. v. case Ocean Co. 105, principle fully established our distinguishable. so Pet. L.Ed. is ’ reciprocal of the sional or carriers motor illegality vehi It is not alone cases. cles, engaged occupa controlling, regular but the not as a is so transaction not, neces- or business. So the latter is It not tion that illegality. of such is nature exception Pope speaking, precisely v. from sec sary approve in an the statement Co., applied op properly tion because it rather describes an as Falls Ins. Glenn eration not section 309. it stated covered But was there in that case. exception referred an in support argument which to as State an further Thompson, A void California v. 313 U.S. supported it. without well 930, 85 thq S.Ct. L.Ed. 1219. statute of frauds by noncompliance with persons connected respects not valid as go pleas 8, 21 We and 25 to see 'have it, parties themselves with when they prin if are aby measured sufficient Hall, 239 Bradley repudiated it. ciple that, pleading “If an there is ex 544, 195 So. Ala. ception clause, party enacting set-up of con- pleas that sort here But the show his pleading adversary must help plaintiff beyond the puts tract which exception; not within the if but, there right It confers him courts. exception subsequent clause or sub claim an insur- to base his statute, defense, sequent is matter of interest. able party.” shown and is to be other Transp. Co., Baggett McBride v. 250 Ala. purpose any good think that We do 101, 103; Mining Clinton 35 So.2d Co. accomplished by wading through be -could Bradford, So. This assign- eighty-seven hundred the one applies exceptions pleading also principles if correct error to see ments -operation a contract. from the Life & applied properly in them. been 'have Garrett, Casualty Ins. Co. v. sustaining must be reversed judgment 35 So.2d 109. We 21 and 25. as- pleas the demurrer trial. another that will be sufficient sume 303(b) exception is an (9) If section remanded. plaintiff pleaded by Reversed section should by replication pleas if the are free from LIVINGSTON, BROWN, and. TAW- interposed demurrer them. SON, concur. JJ., “engaged alleges Flea operation in interstate a carrier commerce.” Rehearing. On alleges “plaintiff was en-

Plea in- gaged hauling said lawnmowers in FOSTER, Justice. contract carrier.” commerce as a terstate fact that to the attention is called Our alleges “p-laintiff 25 was en- th-at Plea requirements the an exclusion from there is gaged hauling carrying said lawn- in or 309, of penalties and the 49 U.S.C.A. of § in mowers interstate commerce.” apply 322, they to that do not so section transporta- reciprocal casual, or occasional sufficiently p-leas If do not those in inter- vehicles property motor tion of carrying that in the lawnmowers allege part a of the This is commerce. state the plaintiff engaged in of was business 303(b) Act. 49 U.S.C.A. Motor Carrier § carrier, theory hauling as a contract the 309, re- to we section (9). Whereas ground the of a of de not made basis was applies persons engaged supra, to ferred find, we far as can murrer so It a carrier. contract in business the of pointed original was in brief on ground out 303(b) appear that section therefore would was In fact the contention submission. exception to provides section an (9) supplemental for first time made the -exception. than an an exclusion It is rather rehearing. application for To brief on this -only applies engaged in 309 to one Section by-this defined engage in business been has carrier. of a contract Section occupies time, the business at “that which the Court as provides men, from 303(b) tention, purpose an exclusion (9) labor of for may casual, profit.” act -up-eration chapter or One of that of occa- of a livelihood 368 a It is said that many if show in cases the circumstances

be sufficient public Abel v. contract must have been purpose continue the business. deny 631, defini- its one State, That enforcement who Ala. 8 So. 760. application. performed it against has other think not in its inter tion we local is may theory that supra, not defense. is plea, posing The language The of the lawfully no one can that which allegation do speaking positive tends strictly a injure public or engaged was time is that defendant at the detrimental public. This in has been dom a carrier in the business of contract in, inant factor such cases both in they allege that this commerce. But interstate and that of Court the United States hauling interstate engaged in in Su he was Watson, preme commerce, permit Knight Court. that it was without 69, 841; Lowery Zorn, the laws of the illegal and in violation of 285, Drummond, 9 So.2d Steele v. If contends United States. 199, 53, U.S. 48 S.Ct. they 72 L.Ed. they exactly Twin allege not should do City Pipe Co., business, Harding Line Co. v. Glass then in such engaged that he was U.S. S.Ct. pointed 75 L.Ed. properly should be the contention A. Frost & Co. C. v. Coeur D’Alene Mines the demurrer so as to allow out in Corp., 312 U.S. 61 S.Ct. necessary. 85 L.Ed. if amendment 500; Bement & Sons v. National Harrow requested review are also We Co., U.S. S.Ct. 46 L.Ed. holding that the Motor Carriers our former Congress, 301 to of 49 U.S.C.A. Act §§ &Frost v. Coeur of A. Co. In the case C. ap principle which we is wLhin the supra, the suit Corp., was Mines D’Alene plied it, whereby violated it one who has purchase for a contract holder of by the right maintain suit when may not his corpo- The corporation. from a of stock upon the contract thus dependent contract sale making the before ration an act which not one for violative n had Act complied with the Securities public regulation for in but revenue States,'15 U.S.C.A. et United 77a § of the is said of California v: State terest. so-called, plaintiffs, seq. petitioners supra, that Thompson, of Califor statute corporation respondent charged that motor carriers not a relating to nia asked judg- repudiated had measure, but that “It is not shown revenue The cor- damages for its breach. ment appears what be other than on its face ground that poration defended be, safeguard measure to the members violation into in entered desiring transporta public secure Congress and was the Securities Aot of vehicle, peculiarly motor who are tion and, therefore, was not defendant void fraud unable themselves from damages The court breach. liable its overreaching engaged in a those purpose legislative observed notoriously subject business to those protection purchasers securi- of innocent U.S. abuses. S.Ct. “They (innocent pur- ties, observing [313 932.]" given Motor Carrier Act does not con Federal are definite remedies in- chasers) every a making tain a clause void contract of with idea that contract consistent the transportation compliance by unregistered without a relation to of having sales engaged absolutely that business. But void”. U.S. one section is shares [312 expres- 322, supra, makes it a The further gave to do so court crime S.Ct. 417.] willfully, expressed knowingly the views above us and and an to authorizes sion enforcibility subject respect We think it to of injunction. is to the the con- with of made State of California v. which are made in violation law comment tracts cases, supra, policy, Thompson, public citing that it was enacted to the above and public lawfully desiring observing: the safeguard to use that “No one can do and transportation peculiarly public to or injure of unable to which tends is form that the from protect public good. themselves fraud to the and over detrimental If defi- it reaching. nitely appears that enforcement of a con- contracts are by which to determine what injurious re- be followed will not tract it should party repugnant to and that least, what the has contracts sults, at generally, upon the of that down. stricken down struck be basis be ought not to agreed to ** * only caution and in cases intended with Congress end which the controlling plainly the reason on which the doc- within as the accomplish was treated to rests, of opinion to trine and that it is because effect The factor.” public the that who dominant one purchaser innocent an justify a suit making performance has of had the -benefit the corporation against a of securities party permitted the other will to avoid be securities sale of such a for the contract promise. his own In corpora- conclusion the court the a time when purchaser at the subject “The contract does not the held: complied with the Securities tion had company to, glass any or tend in manner contract Congress, the and when Act of impose upon public, any wrong, the dis- Act. That subject penalties of such advantage, monopoly or evil plain- attributable to fact that based conclusion is the or of restraint trade. protection within that was the tiff in case to be ac- purpose sought legislative the of glass company “The has failed to show factor complished controlling the as any injure the that contract has tendency to Therefore, deny Congress. Act of the public, appears the and no reason why it contract, said, was him such a relief on should be accord'ng enforced to its sought to be purpose defeat wou'd the te,ms.” ac-. U.S. 51 S.Ct. [283 478.] comp'ishcd It sense a suit by it. was in no Act It is our view that when a corporation violated the trans which the portation company engages the Act in the terms of business in an effort enforce the dependent upon of commerce a interestate a contract rights and whose are as car rier without prohibited by comp'ying require Act. Whereas with the the Act, ments of the Motor suit. Carrier the nature of the instant as to such is which provided there are criminal sanctions Pipe City In Twin Line Co. case of Act, put carrier has himself in Co., supra, Glass Harding position a contravenes the of entered pipe company line which had was provided, Act which said in as agreement with defendant into the case of State Thomp of California v. con- gas. which was consumer of son, supra, shippers “protect to enable company, provided glass as tract overreaching from fraud themselves consumer, requirements would take all its notoriously engaged in those a business company gas long pipe line so subject to those abuses.” is our view pay them, adequately supply and to could the Federal Motor Carrier Act was authority, prescribed by public rate distinctly purpose. for that pipe shortage gas in the event primary purpose We think company might one serving line discontinue protect public irresponsible glass company upon condition adequate who do not have it that carriers given same character facili of service ties, financial plain- backing personal integ given to other industries. rity adequate public to render to the sought enjoin glass serv tiff in the suit question ice. It is not a of whether gas from from another company taking particular adequate carrier company that con- did facili pipe line in violation of have ties, personal backing integ financial glass company in defense of tract. The rity shipper sufficient on that vio- contended that that suit particular occasion, shippers generally; Arkansas, public policy lated the question but it of his with complying prohibited perpetuities monopolies. applicable him which is and for law contract With reference such a public. protection of the We know of principles to general court asserted the authority permit which would no case or It referred which we referred above. have law, carrier, in violation of found meaning public policy in that a contract. upon the of such connection, basis fixed claim saying there no rule a Henry, 49 White v. our In case 779,1 on rehear- appellee

So.2d cited violat- carrier not ing, the suit was doing shipper not

ing law ibut him when apply does so. rule intentionally parti- he not shown that

it is law.

cipated in the violation completed

In case had this predi- he But part of contract.

his property not

cating an insurable interest theory the in- that he own has his bailee, support an insurance

terest protect will him contract solely charges whose basis collection he illegal of an

by virtue True, performed. he can collect has not claim, personal also, his if can recover he also, So.2d 232. See property lost the bene- of the the value shipper property. his owner fit of contrary be

We believe would engage one public policy for

to dominant of a contract carrier in business permit without a re commerce interstate transportation enforce a

quired law rights his insurance accidents, may although thereby he liability, his sustain that which vir protected is arose we learn better

tue of such contract. Until respect. opinion be our

that will application rehearing is over-

ruled.

LIVINGSTON, J.,C. and LAWSON STAKELY, JJ., concur.

51 So.2d v. FAUST et al.

FAUST

4 Div. 591

Supreme Alabama. Court of 29, 1951.

March p. Ante,

Case Details

Case Name: Bankers & Shippers Ins. Co. of NY v. Blackwell

Court Name: Supreme Court of Alabama

Date Published: Feb 8, 1951

Citation: 51 So. 2d 498

Docket Number: 2 Div. 281

Court Abbreviation: Ala.