Birmingham Gas Co. v. Sanford

• Decision Date: 27 October 1932
• Docket Number: 6 Div. 72.
• Citation: 226 Ala. 129,145 So. 485
• Parties: BIRMINGHAM GAS CO. v. SANFORD ET UX.
• Court: Alabama Supreme Court

145 So. 485

226 Ala. 129

BIRMINGHAM GAS CO. v. SANFORD ET UX.

6 Div. 72.

Supreme Court of Alabama

October 27, 1932

Rehearing Denied Jan. 27, 1933.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for damages by William A. Sanford and Archevia Sanford, his wife, against the Birmingham Gas Company. From a judgment for plaintiffs, defendant appeals.

Affirmed.

In pertinent substance count Y of the complaint alleges that the agent or employee of defendant, who was in charge of the work of excavating the ditch contiguous to plaintiff's property and exploding dynamite in blasting rock or rock formation therefrom, was then and there acting within the line and scope of his employment of such agent or employee of defendant; that shortly after the exploding of dynamite commenced, plaintiff Mrs. Sanford discovered that said explosions were injuring plaintiffs' house and property and notified defendant's said agent of this fact and requested him to desist from said injuries and damages; that subsequently to such notice, and two or three days thereafter, plaintiff William A. Sanford, having learned that the exploding of dynamite was continuing to injure and damage plaintiffs' property, likewise informed said agent that said property was being so injured and damaged and requested said agent to cut down on the blasting and the use of explosives as had been and was being done; that he took said agent and showed him the results of the explosions; that notwithstanding said agent, acting within the line and scope of his employment, was informed of the damage being done or that had been done to plaintiffs' property, nevertheless said agent, acting within the line and scope of his agency and employment, continued same after being so informed, and wantonly exploded dynamite in the excavation of said ditch and said agent while acting within the line and scope of his agency and employment, wantonly injured and damaged plaintiffs' property as set out. It is alleged that all the injuries and damages to plaintiffs' property recited and resultant effect and damage to plaintiffs were caused as a proximate result of the wanton conduct of defendant's said agent as employee who was then and there in charge and supervision of the excavating of said ditch, acting within the line and scope of his agency and employment as such in exploding said dynamite as alleged.

The following requested charges were refused to defendant:

A. "The Court charges you that you cannot award the plaintiffs any damages under Count 'Y' of the complaint as amended unless you are reasonably satisfied from the evidence that the defendant's agent Robinson, was conscious at the time of the blasting on the occasion complained of that he was using a greater quantity of dynamite than was reasonably necessary to accomplish the work and that he was conscious that use of such excessive quantity would likely or probably result in injury or damage."

B. "The Court charges the jury that before you can award the plaintiffs any damages under Count 'Y' of the complaint you must be reasonably satisfied from the evidence in the case that the defendant's servant, agent or employee exploding the dynamite on the occasion complained of was conscious that the quantity used by him was in excess of the amount reasonably necessary to accomplish the digging of the excavation."

C. "If you believe the evidence you cannot find for the plaintiff Archevia Sanford."

Bradley Baldwin, All & White, of Birmingham, for appellant.

John W Altman and Fred G. Koenig, both of Birmingham, for appellees.

KNIGHT J.

William A. Sanford, suing alone, filed his complaint in the circuit court against the Birmingham Gas Company, seeking recovery of damages against the defendant for injuries to the house in which he resided and other property of plaintiff occasioned by blasting operation of the defendant in excavating or digging a ditch for the purpose of laying a gas main along Forty-First avenue, in Jefferson county, Ala. It is averred in the complaint that the residence and other property damaged were contiguous to Forty-First avenue, in and along which the excavation was made. That the residence and garage were of stone and concrete construction, the residence having a composition roof, and that there were concrete driveways to the garage, and concrete walks and steps.

In count X, added by amendment, it is averred that the "defendant so negligently conducted itself in and about the exploding of dynamite and blasting of rock formation in its excavation, as aforesaid, that, as a proximate result of said negligence, plaintiffs' said property was injured and damaged." Then follows a description in detail of the injuries.

In the complaint as originally filed on August 26, 1930, the plaintiff William A. Sanford averred that he was the owner of the property, and that the acts complained of were done by the defendant during the month of March, 1930. The original complaint consisted of two counts, one predicating plaintiff's right to recover upon simple negligence and the other for a wanton wrong. On June 10, 1931, the plaintiff amended his complaint by adding counts A and B. However, up to said date, the said William A. Sanford continued as the sole plaintiff in the case.

On the 12th day of October, 1931, the plaintiff further amended his complaint by adding counts X and Y, and by making his wife, Mrs. Archevia Sanford, a party plaintiff with him in the cause, and at the same time withdrew all counts of the complaint except counts X and Y. In amended counts X and Y it is alleged that the property was jointly owned by the said William A. and Archevia Sanford.

The defendant thereupon moved the court to strike from the complaint as last amended the following words: "Plaintiff amends his complaint in the above entitled cause by adding thereto, as a party plaintiff, the wife of plaintiff, Mrs. Archevia Sanford, so that the style of this cause by way of plaintiff shall be William A. Sanford and Mrs. Archevia Sanford, plaintiffs." The stated grounds of said motion were that it appeared from each count of the complaint that the injury and damage complained of were "caused" in the month of March, 1930, and that the cause of action stated in each count thereof is barred as to the plaintiff Mrs. Archevia Sanford by the statute of limitations of one year. The court overruled this motion, and the defendant duly reserved an exception to this action of the court. With its motion to strike overruled, the defendant demurred to counts X and Y (the only counts then in the complaint), separately and severally, upon the ground, inter alia, it appears affirmatively therefrom that the cause of action of the plaintiff Mrs. Archevia Sanford is barred by the statute of limitations of one year. The demurrer was overruled as to all grounds.

In brief of counsel for defendant we find, under "statement of facts," the following statement: "So far as the questions raised on this appeal are concerned, no useful purpose could be served in reviewing the evidence in detail. The jury found the issues of fact in favor of the plaintiff, and no question involving the correctness of that finding is presented on this appeal."

The main question presented for our determination, on this appeal, is whether the plaintiff was properly allowed to amend the complaint by adding his wife, Mrs. Archevia Sanford, a joint owner of the property, as a party plaintiff, in view of the fact that the action was in case, with a statutory bar of one year; it appearing that the injuries and damages were done and suffered more than one year prior to the making of Mrs. Sanford a party plaintiff.

The appellant's counsel has argued this question with much force, and we are free to say that it is not without its difficulties. In some jurisdictions, noticeably Arkansas and Texas, it would seem that the courts hold that, after the statutory bar has become complete against the demand or claim of the party sought to be added as plaintiff by amendment, the amendment should not be allowed. National Fire Ins. Co. v. Pettit-Galloway Co., 157 Ark. 333, 248 S.W. 262; Baker v. Gulf, etc., R. Co. (Tex. Civ. App.) 184 S.W. 257; Temple Cotton Oil Co. v. Davis, 167 Ark. 448, 268 S.W. 38.

The case of Temple Cotton Oil Company, supra, was one for damages and in which the original cause of action accrued to the United Oil Mills, and the claim was assigned by it to the Temple Cotton Oil Company. The latter company was the beneficial owner, but by the law of Arkansas, the assignor-the person to whom the cause of action accrued-was a necessary party, though a nominal party.

The court in that case, citing the case of National Fire Ins. Co., supra, held the amendment came too late, holding that the cause of action as to the United Oil Company was barred by the statute of limitations.

So, in the National Fire Ins. Co. Case, supra, the fire insurance policy sued on provided that, if the insurer claimed that fire was caused by act of third person, the insurer should on payment of loss be subrogated to the extent of such payment to right of recovery by insured, and the right should be assigned to insurer. In the action, which was under the assigned policy, the Supreme Court of Arkansas held the insured a necessary party, the cause of action not being assignable at law. The court further held that there was no error in refusing to permit the insured to be made a party plaintiff because the action as to him was barred.

It requires no argument to demonstrate that the holding in the above-cited cases by the Supreme Court of Arkansas is at variance with the uniform holding of our own court. By virtue of section 5700 of the Code of Alabama the assignor in each of said cases...