Alabama Great Southern R. Co. v. Lawler

• Decision Date: 07 May 1925
• Docket Number: 7 Div. 557
• Citation: 104 So. 412,213 Ala. 119
• Parties: ALABAMA GREAT SOUTHERN R. CO. v. LAWLER.
• Court: Alabama Supreme Court

104 So. 412

213 Ala. 119

ALABAMA GREAT SOUTHERN R. CO. v. LAWLER.

7 Div. 557

Supreme Court of Alabama

May 7, 1925

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Action by Mrs. W.L. Lawler against the Alabama Great Southern Railroad Company for failure to deliver goods. Judgment for plaintiff and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

Goodhue & Lusk, of Gadsden, for appellant.

O.B Roper, of Gadsden, for appellee.

SAYRE J.

Plaintiff appellee, brought her action against the Louisville &amp Nashville Railroad Company, a corporation, and the "Southern Railway Company, a corporation (A.G.S. Division)," on a bill of lading for the failure of defendants to deliver certain personal goods and chattels consigned--by whom the original complaint did not allege--to Norwood Smith at Biloxi, Miss. She emerged from the case with a judgment against the Alabama Great Southern Railroad Company. The defendant in judgment was not brought in by the notation quoted above, "A.G.S. Division," for, obviously, that was no sufficient description of said defendant, but, as the record shows, after the Louisville & Nashville Company had been dismissed, the Alabama Great Southern was brought in by amendment and the service of summons, and then the Southern was dismissed after its demurrer to count D; at that time the only count remaining in the complaint had been sustained and plaintiff had refused to plead further against it. Defendant, Alabama Great Southern complains of all this as being a violation of the rule that no complete change of parties shall be allowed; but we consider the case now as if the action had been brought originally against the Alabama Great Southern alone in the usual way of summons and complaint. The action thus instituted against the last-named defendant was in truth not an amendatory proceeding, but an original action, subject to every defense available to the defendant as of the time of the filing of the complaint against it. James v. Davis, 209 Ala. 87, 95 So. 346. Now that costs should be apportioned according to justice and equity (Code 1923, § 7221), the defendant who is brought in by this method can suffer no prejudice thereby. The foregoing is the view of the writer. Other members of court prefer to follow the rule which forbids an entire change of parties--a rule in which the writer fully concurs when it serves any good and useful purpose. In Steele v. Booker, 205 Ala. 210, 87 So. 203, a conclusion was reached similar to that now stated by the writer, but on a different ground, which sufficiently appears in the reported case. A majority of the court--all save Anderson, C.J., and Gardner, J.--are now of opinion that the decision in that case on this point should be overruled. It is accordingly so ordered.

The report of the case sets out count D. The demurrer of the sole remaining defendant, the present appellant, should have been sustained to this count. The action was ex contractu on a bill of lading; but the count failed to show any right of action in the plaintiff. On the facts...