Birmingham Iron & Development Co. v. Hood

• Decision Date: 18 April 1922
• Docket Number: 6 Div. 999.
• Citation: 94 So. 835,19 Ala.App. 4
• Parties: BIRMINGHAM IRON & DEVELOPMENT CO. v. HOOD.
• Court: Alabama Court of Appeals

94 So. 835

19 Ala.App. 4

BIRMINGHAM IRON & DEVELOPMENT CO. v. HOOD.

6 Div. 999.

Court of Appeals of Alabama

April 18, 1922

Rehearing Denied May 16, 1922.

Appeal from Circuit Court, Jefferson County; Lum Duke, Judge.

Action by Mrs. David Hood against the Birmingham Iron & Development Company. Judgment for plaintiff, and defendant appeals. Affirmed. Certiorari denied, Ex parte Birmingham Iron &amp Development Company, 94 So. 837.

Rudulph & Smith, of Birmingham, for appellant.

Nesbit & Sadler and Arlie Barber, all of Birmingham, for appellee.

SAMFORD J.

Appellant first assigns as error the action of the trial court in permitting plaintiff, over the proper motion of defendant, to amend the summons by striking out after the name "Birmingham Iron & Development Company" the words "a partnership composed of M. R. McNeill & G. R McNeill, M. R. McNeill, and G. R. McNeill," and adding in lieu thereof "a corporation"; the insistence here being made that the action of the court permitted an entire change of parties defendant. This proposition is decided adversely to appellant's contention. Lewis Lumber Co. v. Camody, 137 Ala. 578, 35 So. 126; Head v. J. M. Robinson, Norton & Co., 191 Ala. 352, 67 So. 976.

Admitting that count A as amended is subject to some of the grounds of demurrer filed, which, not being necessary, we do not decide, the direct issue presented to the jury under appropriate instructions was the breach of the contract of lease, to furnish to plaintiff during the term steam heat sufficient for the comfort and well-being of plaintiff and her family, and the result of the trial was not affected by the rulings of the court on demurrer. Whatever may have been the rule before, since the case of Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929, it is now declared generally that:

"If a complaint, not so fatally defective that a judgment based thereon would be arrested on motion, or a plea in a civil cause be defective for the reason that a necessary allegation is omitted, and a demurrer pointing out this defect has been improperly overruled, the judgment following will not be reversed on this account if the entire record discloses that the trial court by an appropriate charge instructed the jury specifically as to the necessity of proving the omitted allegation, and the record further shows that this omitted allegation was proved and considered." Jackson v. Vaughn, 204 Ala. 543, 86 So. 469; Hines, etc., v. Dollar, 205 Ala. 330, 87 So. 825.

In the instant case the court, in his oral charge, clearly stated and defined the issues between the parties as a result of the alleged breach of the contract, and evidence was admitted tending to prove the contentions both of the plaintiff and defendant, thereby presenting the whole case to the jury, despite the overruled demurrer. In the later case of Ex parte First National Bank of Montgomery, 206 Ala. 394, 90 So. 340, the Supreme Court seems to have gotten away from the foregoing rule, while reaffirming the opinions in the cases above cited. The writer confesses an inability to see the distinction, unless one rule is...