Bridwell v. Brotherhood of Railroad Trainmen

• Decision Date: 05 October 1933
• Docket Number: 6 Div. 973.
• Citation: 150 So. 338,227 Ala. 443
• Parties: BRIDWELL v. BROTHERHOOD OF RAILROAD TRAINMEN et al.
• Court: Alabama Supreme Court

150 So. 338

227 Ala. 443

BRIDWELL v. BROTHERHOOD OF RAILROAD TRAINMEN et al.

6 Div. 973.

Supreme Court of Alabama

October 5, 1933

Rehearing Denied Nov. 2, 1933.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for libel by J. P. Bridwell against the Brotherhood of Railroad Trainmen and another. From a judgment for defendants, plaintiff appeals.

Reversed and remanded.

W. A Denson, of Birmingham, for appellant.

Crampton Harris, of Birmingham, for appellees.

FOSTER Justice.

This case seems to be based upon the same letter alleged to contain libelous matter referred to in Collins v Brotherhood of R. R. Trainmen, 226 Ala. 659, 148 So 133; Weir v. Brotherhood of R. R. Trainmen, 221 Ala. 494, 129 So. 267; Richardson v. Brotherhood of R. R. Trainment, 221 Ala. 449, 129 So. 574.

The suit was filed September 24, 1924. It alleged that the matter was published, without stating where or when it was published. Demurrer to each of the counts was sustained January 12, 1931. On the same day plaintiff amended certain counts of the complaint to make them allege that the publication "was made in Jefferson County, State of Alabama, and other places unknown to plaintiff," on December 12, 1923, and other dates unknown to plaintiff.

The matter referred to as containing the libel was a letter purporting to be signed by Roy C. Smith at Atlanta, Ga., addressed to W. G. Lee, Cleveland, Ohio, dated December 12, 1923, and which was referred to as inclosed in a letter dated December 18, 1923, purporting to be signed by W. G. Lee at Cleveland, Ohio, addressed to F. W. Morey, Springfield, Mo.

Plaintiff, on January 13 and 14, 1931, further amended the complaint by adding separate counts, some alleging that the publication was in Atlanta, Ga., on December 12, 1923, the purported date of the letter from Smith to Lee. Others alleged the publication to have been in Cleveland, Ohio, December 18, 1923, the date of the letter from Lee to Morey. Others fixed it at Springfield, Mo., December 20, 1923, to which city the letter of Lee to Morey was addressed. Others, respectively, at St. Louis, Mo., Buffalo, N. Y., and Birmingham, Ala., giving different dates.

The court sustained an objection to the allowance of all the amended counts which did not allege that the publication was in Birmingham, thereby excluding all those counts which alleged that the publication was in some other state than in Alabama. This ruling is now before us for consideration. Section 9513, Code, authorizes an amendment by adding new counts which could have been included in the original complaint, and provides that they shall not be held to relate to new or other causes of action, so long as they refer to the same transaction and parties as the original, and if this is not apparent on the face of the pleading, it shall be a question of fact for the jury. Cowart v. Aaron, 220 Ala. 35, 123 So. 229; First National Bank v. Morgan, 213 Ala. 125, 104 So. 403.

It is apparent upon the face of the pleading that the several counts refer to the same letter as containing the libelous matter. But they allege a publication of it by defendant, or under its authority, at the separate times and places. We note that up to January 12, 1931, the complaint did not state the time and place of the publication. When on that day the court sustained demurrer to the complaint, plaintiff amended counts 1, 3, 5, 6, and 9 by adding the place of the publication to be Jefferson county, Ala., and other places unknown to plaintiff, and that the time was December 12, 1923, and other dates unknown to plaintiff. As thus amended, the court on the same day overruled demurrers to counts 1, 3, 5, 6, and 9. It was on the next succeeding days, January 13 and 14, 1931, that plaintiff filed the counts to which objection was sustained fixing the publication in the various other states and cities, and at other designated times. While there intervened some other pleading, it all seems to have occurred at the same trial.

We see no reason under such circumstances why there should be a difference in principle whether new counts were filed at the same moment when the amendment was first made fixing the place in Jefferson county or on the next and succeeding days during the continuance of the same trial. So that we think the question should be treated as though all the new counts were filed at the same time as the amendment to those originally filed. But if otherwise treated, we note that the first amendment did not indicate that the purpose of the original complaint was to limit the place and date of publication to Jefferson county on December 12, 1923. That amendment, if treated as indicative of the purpose of the original complaint, shows on its face that other places and times were included, though as there alleged they were unknown to plaintiff. The various other counts which were stricken therefore were all consistent with the theory of the complaint as originally filed and as first amended. Louisville & N. R. R. Co. v. Echols, 203 Ala. 627, 84 So. 827.

Appellee makes the point that the original complaint was intended to charge a publication in Jefferson county, Ala., on December 12, 1923, and that each of the amended counts which were stricken shows a distinct and new cause of action, which it is argued cannot be added by amendment; but, if so, it does not relate back to the filing of the complaint. Based upon those two theories and others, to be discussed, appellee seeks to uphold the ruling of the court sustaining objection to them.

But section 9513, Code, as it has appeared since the adoption of the Code of 1907, permits the addition by amendment of new counts which add new and distinct causes of action which could have been joined in the suit at the beginning, but their filing does not relate back to the date when the suit was begun to influence the statute of limitations when not referring to the same transaction. Sullivan v. North Pratt Coal Co., 205 Ala. 56, 87 So. 804; Haynes v. Phillips, 211 Ala. 37, 99 So. 356; Roth v. Scruggs, 214 Ala. 32, 106 So. 182.

But it is permissible to join in separate counts distinct torts of the same nature. each furnishing a separate and distinct cause of action. McDougal v. A. G. S. R. R. Co., 210 Ala. 207, 97 So. 730; Peck v. Henderson, 218 Ala. 233, 118 So. 262; Ballenger v. Ballenger, 205 Ala. 595, 88 So. 826; Hitt Lumber Co. v. Sherman,

189 Ala. 681, 66 So. 639; Louisville & N. R. R. Co. v. Cofer, 110 Ala. 491, 118 So. 110; Mohr v. Lemle, 69 Ala. 180; Alabama G. S. R. R. Co. v. Shahan, 116 Ala. 302, 22 So. 509. This is said to be true when each arises from a different publication of the same libel. 37 Corpus Juris, 21. Williams v. A. C. O. Co., 152 Ala. 645, 44 So. 957, and Vest v. Speakman, 153 Ala. 393, 44 So. 1017, relate to causes of a different nature.

In Age-Herald Publishing Co. v. Waterman, 188 Ala. 272, 66 So. 16, Ann. Cas. 1916E, 900, the complaint as first filed fixed the place and time of the publication as in Birmingham on May 28, 1910. Amendments were filed more than a year after the publication, alleging publication of the same article in a Memphis, Tenn., newspaper induced by defendant. There was no question as to the propriety of the amendment, but it was held that they stated different causes of action, and were subject to a plea of the statute of limitations of one year. Not considering the statute of limitations for the moment, we think it clear that our statutes and decisions permit the filing of such an amendment, when the different or distinct cause is set forth in a separate count, and is such as that it could have been "included in the original complaint."

The point is also made that the various amended counts which were stricken show that the causes of action arose under different jurisdictions, and that to join them would bring about the confusion of having each controlled by different principles of law peculiar to each separate state. It is likewise true that when several counts join distinct causes of action, all governed by the laws of the same state, they are tried each without reference to the other, controlled by different principles and defenses. We do not see that thereby any less confusion exists than when each count is governed by the laws of different states. It is the difference in the applicable principles which gives rise to the argument, not the difference in the jurisdictions which enacted such principles.

Section 5681, Code, permits suits in Alabama on all causes which originated in another state either by common law or statute. Even without a statute, a suit for libel, actionable at common law, when published in a common-law state, would probably be held to be actionable in Alabama, also a common-law state. 37 Corpus Juris p. 18, § 320; Piplack v. Mueller, 97 Fla. 440, 121 So. 459.

The several counts in the instant case relate to Georgia, Ohio, Missouri, and New York. They are all common-law states. 12 Corpus Juris, 201; Peet v. Hatcher, 112 Ala. 514, 21 So. 711, 57 Am. St. Rep. 45; Hawley v. Bibb, 69 Ala. 52; Watford v. Alabama & Fla. Lumber Co., 152 Ala. 178, 44 So. 567. The matters set forth in them are actionable at common law, if at all. 36 Corpus Juris, 1149, 1152. So that we cannot sustain appellee in this contention.

Upon the question of the statute of limitation and the right of the court to sustain the objection on that ground, we agree as we have...