88 So. 2d 363 | Ala. | 1956
The interrogatories involved are as follows:
"2. Attach to your answer to this interrogatory an itemized statement of the $3000.00 alleged to have been due you by the plaintiff at the time this action was commenced for unearned premiums on insurance cancelled by the plaintiff or ordered by the defendant to be cancelled, during the period of three years immediately before the filing of this suit, showing on said itemized statement a complete description of each and every one of said policies of *377 insurance, giving the date of issuance of each of said policies, the date of expiration shown on each of said policies, the name of the insurance company carrying the insurance, a description of the property covered by each of said policies, and the name of the insurance company carrying the insurance, a description of the property covered by each of said policies, and the name of the person, firm or corporation in whose name or names each of said policies were issued and the amount of earned and unearned premium on each policy.
"3. State the date or dates on which you gave notice to the plaintiff to cancel any policy or policies of insurance.
"8. Is it not a fact that the promissory note executed by you on May 9, 1952, in the amount of $3052.47 to the plaintiff, Auburn Insurance Agency, Inc., was to cover the balance due by you to the plaintiff on the date the note was executed for insurance premiums that had already been earned? If not explain.
"9. If your answer to the next preceding interrogatory is in the negative, then fully explain which of the premiums for which you executed said note were unearned premiums, describing each insurance policy, the date thereof, the expiration date shown thereon, the name of the insurer, the name of the insured, the amount of insurance carried, a description of the property covered and the amount of the premium on each of said policies."
The following answers were made:
"2. The defendant does not have in his possession or under his custody or control all the information or knowledge necessary to answer this interrogatory. However, some of the insurance policies on which the defendant bases his claim are as follows:
"(a) Policy No. RS 65017, issued by United States Fidelity Guaranty Company insuring the Markle Drug Store on mercantile and robbery coverage. This policy originally expired in October, 1952 and was reissued under a binder at that time. The extension of the policy was cancelled on March 28, 1953. I do not know the date of the original issuance of the policy. I do not know the amount of unearned premiums due on this policy because I do not have the necessary knowledge or information to compute premium rates.
"(b) Policy No. MSP 24406, issued by United States Fidelity Guaranty Company. It is my recollection that this policy was also on the Markle Drug Store property. It was cancelled March 30, 1953. I do not recall the date of its issuance.
"(bb) Policy No. G-334066, issued by Century Indemnity Company for glass coverage to my residence. This policy was cancelled March 30, 1953. I do not recall the date of its issuance.
"(c) Policy No. RTO 182383, issued by United States Fidelity Guaranty Company covering my residence at 219 Payne Street, Auburn, Alabama for theft. I do not recall the date of issuance of this policy; it was cancelled March 30, 1953.
"(d) Policy No. AC. 125 1264, issued by Century Indemnity Company, insuring the scooters used for delivery purposes in my Markle Drug Company business. This policy was issued May 18, 1952, and cancelled March 28, 1953. Annual premium on the policy was $110.00. Although I was entitled to a return premium in the amount of $12.10 or more, I have received no credit for this.
"(e) Policy No. AC. 4817, issued by Birmingham Fire Insurance Company on my 1951 Mercury automobile, Motor No. 51 SL 107186. Eighteen months premium on policy was $153.00; policy canceled March 28, 1953. I am entitled to return of unearned premium in the amount of $63.12. I do not know the date of issuance of this policy.
"(f) Policy No. UCA 171128, issued by United States Fidelity Guaranty Company for liability insurance on my above described Mercury automobile, with annual premium of $47.60, issued January 26, 1953, canceled March 28, 1953. I am entitled to a return of unearned premium in the amount of $34.75.
"(g) Policy No. 300507, issued by Liverpool, London Globe Insurance Company, *378 covering household furniture in the rented apartment owned by me at 219 Payne Street, Auburn, Alabama. The coverage was limited to $600.00; premium was $13.68. Policy canceled March 28, 1953. I do not know the date of issuance of this policy, but I am entitled to $6.39 for unearned premium.
"(h) Policy No. 305331, issued by Newark Fire Insurance Company, covering household furniture in my dwelling at 219 Payne Street, Auburn, Alabama. Premium on this policy was $40.80. It was canceled March 28, 1953. I am entitled to the return on unearned premium in the amount of $19.05. I do not know the date of issuance of this policy.
"(i) I am entitled to the return of unearned premiums on two or three policies of fire insurance on my rental property at 217-219 1/2 Payne Street, Auburn, Alabama. I do not recall the numbers of these policies or the company issuing them, since these policies are not in my possession. I do not recall the date of their issuance. I requested the cancellation of these policies on or about August, 1953.
"I do not have in my possession all information requested in this interrogatory. The plaintiff has information in his possession with which to supply the other answers requested in this interrogatory since its records must show the detailed information about these policies requested in this interrogatory. I do not have the information or knowledge with which to compute the exact amount of unearned premiums to which I am entitled on all the above referred to policies.
"3. I requested the cancellation of the policies referred to in my answers to interrogatory 2 (a) through (i) on or about March 28 or March 30, 1953. In August, 1953, I requested cancellation of the policies referred to in subdivision (i) in my answer to interrogatory 2.
"8. No. The note represented the payment of premiums on policies supposedly still in force on which there were unearned premiums.
"9. I do not have the information necessary to answer this interrogatory in my possession. It is within the possession of the plaintiff which has the records of all the insurance policies issued by it for me.
Petitioner, defendant below, seeks a writ of mandamus requiring Honorable Will O. Walton, as Associate Judge of the Fifth Judicial Circuit, to vacate an order which directed defendant to answer interrogatories 2, 3, 8 and 9 propounded to him by the plaintiff. The cause was submitted here on briefs on the petition and respondent's answer thereto.
Plaintiff, Auburn Insurance Agency, Inc., sued defendant on two promissory notes. Count 2 of the complaint claimed $3,052.47, the face of one of the notes, plus an attorney's fee. We do not describe the note sued on in count 1, because the interrogatories in question are concerned with the note and debt claimed in count 2.
After his demurrer had been overruled, defendant filed a plea in short by consent of the general issue with leave etc. In addition, he filed pleas 6, 7 and 8 which were pleas of setoff. Plea 7 was a plea of setoff in the sum of $3,000.00 due from plaintiff for unearned premiums on insurance canceled by plaintiff or ordered by defendant to be canceled during the period of three years immediately before the filing of this suit. There is no question but that plaintiff claims that the note sued on in count 2 was given in payment of insurance premiums.
On November 3, 1953, plaintiff filed interrogatories to defendant covering both counts of the complaint; and on November 5, 1953, defendant propounded interrogatories to plaintiff. Defendant answered plaintiff's interrogatories on February 11, 1954, and plaintiff answered defendant's interrogatories on February 15, 1954.
On April 9, 1954, plaintiff filed a motion to require defendant to answer certain numbered interrogatories including the four here involved. Six days later, defendant filed a like motion concerning certain interrogatories to which plaintiff had filed exceptions and had not answered. On April 19, 1954, the trial court made the following order which petitioner seeks to have vacated by this petition:
"On this April 19, 1954, the date set for the settling of pleadings prior to the trial term of this court, and the parties to this suit, the plaintiff corporation by attorney and the defendant in person and by attorneys, and the plaintiff having filed motion to require the defendant to answer interrogatories, and the said motion being heard and considered, it is ordered by the court that the defendant answer the following interrogatories 2, 3, 8, 9, and within 15 days from this date."
The trial court further ordered plaintiff to answer certain interrogatories which it had failed to answer and that order was complied with on May 1, 1954.
The interrogatories and the answers thereto with which we are concerned are set out by the reporter. It is not a question of a refusal of defendant to answer them, but rather, are they adequately answered?
Mandamus is the appropriate remedy for review of a circuit judge's rulings in either granting or refusing a motion to require answers or fuller answers to interrogatories propounded by one party to the adverse party under Title 7, § 477 et seq. Ex parte Pollard,
We think the answer to interrogatory 2 was sufficient. The defendant states under oath that he does not have "all the information or knowledge necessary to answer" it, and he should not be subjected to the penalties for not answering, when he, of his own knowledge, does not know. State ex rel. Everett v. Board of School Commissioners of Mobile County,
"20. (a) Did Auburn Insurance Agency, Inc. write Policy No. RS 65017 with United States Fidelity Guaranty Company? If so, answer the following questions:
"(b) When was the policy written?
"(c) What was the term of the policy?
"(d) What was the premium?
"(e) What was the coverage?
"(f) When did it expire?
"(g) Was it extended, and, if so, for what period?
"(h) Who paid the premium for the extension?
"(i) Was a binder issued on this policy?
"(j) Was said policy cancelled before it expired, and, if so, when?
"(k) Was there an unearned premium on this policy, and, if so, how much?
"(l) Was such unearned premium ever repaid to C. C. Markle?
"(m) If you have not already done so, attach a copy of this policy and any binder issued thereon to your answer."
These questions were among those which were objected to and not answered by plaintiff when his answers to defendant's interrogatories were filed on February 15, 1955.
One of the reasons given by the respondent in his answer to the petition as to why he ordered defendant to answer the interrogatories was:
"(g) That since the Court, respondent, required plaintiff to answer defendant's interrogatories 20-31, giving to the defendant evidence to support defendant's claimed set-off of $3,000, that the plaintiff was likewise entitled to know in advance of the trial of the cause, on what facts or figures defendant below based his alleged set-off claim of $3,000." The question as to the sufficiency of plaintiff's answers to defendant's interrogatories is not before us for decision. As already noted, defendant did not have the full information concerning the policies in question when he made the contested answers on February 11, 1954. Even though he did receive additional information from plaintiff on May 1, 1954, after the court had ordered plaintiff to answer interrogatories 20 to 31 inclusive, that information being from the plaintiff, it was already known to him, Ex parte Wood,
"Answers predicated on 'information' obtained from others would be purely hearsay, and not admissible as evidence; hence such information is not within the influence of the statute."
Interrogatory 3 was sufficiently answered. Ex parte Driver, supra.
The first sentence of interrogatory 8 is fully answered with the word "no." The second sentence is an adequate explanation to such a general question as "If not explain." Ex parte Driver, supra.
Interrogatory 9 presents the same problems dealt with in our discussion of interrogatory 2.
The foregoing is sufficient to indicate that it is the judgment of this court that the order of the trial court should not have been issued requiring defendant to answer interrogatories 2, 3, 8 and 9 more fully, and unless the circuit court vacates the order on being advised of this ruling, the peremptory writ of mandamus will be issued.
Writ awarded conditionally.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. *381