Opinion
SC 455.
January 31, 1974. Rehearing Denied April 4, 1974.
Appeal from the Circuit Court, in Equity, Jefferson County, E. L. Ball, J.
Hardin, Stuart Moncus, Birmingham, and Paden Green, Bessemer, for appellants.
Where the relief sought in equity is to enjoin an action at law, and the matters sought to set up in the equity proceedings could be asserted in the law action, the complaint is deemed to have an adequate remedy at law, and his bill is due to be dismissed. Plastone Plastic Co. v. Birmingham Fire Casualty Co., 276 Ala. 657, 165 So.2d 914. Waiver and estoppel may be pleaded at law and where relief sought in equity is to enjoin an action at law raising these defenses, the complaint is deemed to have an adequate remedy at law and his bill is due to be dismissed. Plastone Plastic Co. v. Birmingham Fire Casualty Co., 276 Ala. 657, 165 So.2d 914.
Stone, Patton Kierce, Bessemer, for appellees.
The jurisdiction of a court of equity to enjoin actions at law is often recognized where the law court could adjudicate some questions but could not afford the adequate and full relief which is the basic ground of equitable interference. Carpenter, et al. v. First Natl. Bank of B'ham., 236 Ala. 213, 181 So. 239; Michie v. Bradshaw, 227 Ala. 302, 149 So. 809; Boone v. Byrd, 201 Ala. 562, 78 So. 958; Watson v. Hamilton, 211 Ala. 688, 101 So. 609; Gulf Red Cedar Co. v. Crenshaw, 148 Ala. 343, 42 So. 564. A bill contains equity to prevent multiplicity of suits where there is a community of interest in the subject matter, the questions of law and fact. Lee v. City of Birmingham, 223 Ala. 196, 135 So. 314; Southern Steel Co. v. Hopkins, 174 Ala. 465, 57 So. 11, 40 L.R.A., N.S., 464; Turner v. City of Mobile, 135 Ala. 73, 33 So. 132; Wharton v. First Natl. Co. of B'ham., 230 Ala. 421, 161 So. 825. In order to exclude the remedy in equity, the remedy at law must be as complete, as practical, and as efficient to the ends of justice and its prompt administration as the remedy in equity. Boone v. Byrd, supra; Walla Walla v. Walla Walla Water Co., 172 U.S. 12, 19 S.Ct. 77, 43 L.Ed. 341; Gulf Red Cedar Co. v. Crenshaw, 138 Ala. 134, 35 So. 50. A disclaimer in a judicial proceeding is binding upon the disclaiming party. Dixie Highway Express, Inc. v. Southern Rwy. Co., 286 Ala. 646, 244 So.2d 591. The parent who brings a suit for the wrongful death of his or her child is alone entitled to the money should a recovery be had. Peoples v. Seamon, 249 Ala. 284, 31 So.2d 88; Adkinson v. Adkinson, 286 Ala. 306, 239 So.2d 562. The doctrine of estoppel rests upon the particular fact and circumstances of each case. One may be estopped by conduct, words, or even by a guilty silence when honesty demands that he speak the truth of the matter for which the situation calls. Hinds v. Federal Land Bank of New Orleans, 227 Ala. 218, 186 So. 153; Ivy v. Hood, 202 Ala. 121, 79 So. 587.
Arlin H. Wenndt and Elaine G. Wenndt, the parents of Terry Wenndt, deceased, appeal from a judgment on a bill for declaratory judgment filed in the Circuit Court of Jefferson County, Bessemer Division.
The facts of the case are complex. On April 8, 1967, Terry Wenndt, a nine-year-old child, was struck and killed by a locomotive operated by the appellees (Southern). When struck, Terry was riding a bicycle. On April 19, 1967, Mrs. Wenndt filed a wrongful death action by and through her attorney, in Case Number 21666. At that time she was not living with her husband. Southern filed a sworn plea in abatement to the complaint alleging that Mrs. Wenndt was not the proper party to bring suit. On December 20, 1967, without notice to Southern, and apparently without notice to Mrs. Wenndt, Case Number 21666 was voluntarily dismissed by Mrs. Wenndt's attorney. The following order was entered:
" 'Dismissed on motion of plaintiff due to adverse ruling of the Court. Costs assessed against the Plaintiff. Ball, Judge.' "
No adverse ruling appears in the record.
On January 4, 1968, the attorney who filed suit in Case Number 21666 filed a wrongful death action on behalf of Mr. Wenndt. This was Case Number 22135. Southern filed a demurrer. No other pleadings were filed in this action.
On March 4, 1968, Mrs. Wenndt, through another law firm, filed a petition under the Four Months Statute to set aside the judgment of dismissal in Case Number 21666 and reinstate the case. This was Case Number 22238. In April, 1968, Mr. and Mrs. Wenndt employed another law firm to represent them to determine which one of them had the cause of action. Case Number 22238 was set for a hearing on Southern's demurrer to the petition. On Motion of Wenndt's counsel there was a continuance.
On May 2, 1969, a hearing was held which was attended by the Wenndts, counsel for Mr. Wenndt in Case Number 22135, counsel for Mrs. Wenndt in Case Number 22238, counsel for Mr. and Mrs. Wenndt, and the defense counsel. This hearing was inconclusive and was continued. On May 12, 1969, there was another hearing attended by all parties and counsel who were present at the May 2 hearing. An appearance by the newly employed counsel for Mrs. Wenndt was entered. He informed the court that he was prepared to proceed on the petition to reinstate her original suit, Case Number 22238. A demurrer to the petition was overruled and Southern filed an answer. On September 17, 1971, Mrs. Wenndt moved to dismiss her petition to reinstate her original suit. The motion was granted on November 5, 1971. By this date the statute of limitations for wrongful death had run. Any rights which Mrs. Wenndt might have had were extinguished. Mr. Wenndt's case was still pending. On November 30, 1971, Southern filed its bill for declaratory judgment seeking a declaration of rights of the parties in dispute over who was the proper party to prosecute the action for wrongful death. Southern prayed the court to find that Arlin H. Wenndt had abandoned his cause of action in the pending case or in the alternative that he was estopped from prosecuting his cause of action or both. Temporary and permanent injunctive relief was also sought. The trial court granted a temporary injunction. Motion to dissolve and a motion to discharge the temporary injunction were overruled. After an extensive finding of facts the court entered an order granting the relief sought by finding that Arlin H. Wenndt had abandoned any cause of action he might have had and he was enjoined from further prosecution of his pending action.
The eight assignments of error resolve themselves into two arguments: First, that there was adequate remedy at law; second, that Mr. Wenndt did nothing to indicate that he was abandoning or waiving his cause of action.
Waiver may be pleaded in a suit at law and so also equitable estoppel may be pleaded at law to a purely legal claim. Ballenger v. Liberty National Life Insurance Company, 266 Ala. 407, 96 So.2d 728 (1957). In Plastone Plastic Company v. Birmingham Fire and Casualty Company, 276 Ala. 657, 165 So.2d 914 (1964), this court said:
"Where the relief sought in equity is to enjoin an action at law, and the matter sought to set up in the equity proceedings could be asserted in the law action, the complainant is deemed to have an adequate remedy at law . . ."
Southern argues that the defenses of waiver and estoppel were not available when Mr. Wenndt filed his suit and that Mrs. Wenndt cannot be made a party to his suit; that she would be free to file another action. Southern fails to answer two questions raised by its argument. The pending case of Mr. Wenndt consists of a complaint and a demurrer. If the demurrer were overruled, Southern is not precluded from raising all defenses available to it at this time, including waiver and estoppel. Next, the final order does not affect Mrs. Wenndt in any way, and if she filed another suit, Southern could plead the statute of limitations.
Since there was a suit at law then pending, to which the same persons were parties and in which identical issues may be adjudicated, the declaratory relief was not available. In Foreman v. Smith, 272 Ala. 624, 133 So.2d 497, the court said that,
". . . [T]he rule which prevails generally . . . is that jurisdiction of a declaratory judgment action will not be entertained if there is pending at the time of the declaratory action another action or proceeding to which the same persons are parties, in which are involved and may be adjudicated the same identical issues that are involved in the declaratory action."
Here Southern has available to it all remedies in the suit at law that it asserts in its bill for declaratory judgment.
The mere fact that by permitting Mr. Wenndt to prosecute Case No. 22135 "would cause the railroad companies irreparable damages in that they would be caused to expend large sums of money and be harassed, inconvenienced and vexed by defending it" is not sufficient ground for equity to enjoin the suit at law. Foreman, supra.
The bill is without equity and it follows that the decree of the trial court is reversed and the cause remanded with directions to dissolve the temporary injunction.
Reversed and remanded with directions.
COLEMAN, BLOODWORTH, McCALL and JONES, JJ., concur.