Cochrane v. Fuller

• Decision Date: 18 November 1919
• Docket Number: 2 Div. 205
• Parties: COCHRANE et al. v. FULLER.
• Court: Alabama Court of Appeals

84 So. 400

17 Ala.App. 230

COCHRANE et al. v. FULLER.

2 Div. 205

Court of Appeals of Alabama

November 18, 1919

Appeal from Circuit Court, Choctaw County; Ben D. Turner, Judge.

Suit by H.C. Fuller against John T. Cochrane and M.W. Thompson as receivers of the Alabama, Tennessee & Northern Railway. From judgment for plaintiff, defendants appeal. Reversed and remanded.

Armbrecht, Johnston & McMillan, of Mobile, for appellants.

D.M Boswell, of York, for appellee.

BRICKEN P.J.

H.C Fuller (appellee) brought suit against the appellants receivers of the Alabama, Tennessee & Northern Railway for damages done to his mule. Originally the complaint was filed against "John T. Cochrane and M.W. Thompson, receivers," etc., and was filed on January 31, 1917. The action was based upon an alleged injury inflicted on July 16, 1916. On September 10, 1918, the complaint was amended by adding the word "as" before the word "receivers" so as to make the complaint one against "John T. Cochrane and M.W. Thompson, as receivers of," etc. After the complaint was so amended, the defendants were permitted to file and did file an additional plea setting up the statute of limitations of one year, and also filed an amended plea of the general issue. The cause was tried upon the plea of the general issue and the statute of limitations of one year. The complaint was in the following language:

"Plaintiff claims of the defendants the sum of $250 for that whereas heretofore, on, to wit, July 16, 1916, defendants were operating a railroad in said county of Choctaw on which railroad defendants were operating by its employés locomotive trains and cars; that on said day and date and in said county, about 300 yards north of the depot at West Butler, Ala., and near a public crossing on said railroad, the said defendants, by their agents, servants, and employés who were in charge of said locomotives, trains, and cars, did so carelessly and negligently operate said locomotive trains and cars as to allow said locomotive, trains, and cars to strike, run over, against, or upon a mule, the property of the plaintiff, in such a way that said mule was so badly crippled and mangled as to render her worthless to plaintiff, to the damage of the plaintiff in the sum of $250; wherefore he brings this suit and demands judgment for $250 together with costs of suit."

The plaintiff offered evidence showing injury done to his mule on July 16, 1916, and there was evidence tending to show that the injury was done by a train on the Alabama, Tennessee & Northern Railway. There was no direct proof of the injury done to the mule by the train, but the proof showed sufficient facts to warrant the finding that the injury was done by a train on the Alabama, Tennessee & Northern Railway. Sou. Ry. Co. v. Blankenship, 14 Ala.App. 261, 69 So. 591.

There was no proof offered that the defendants were receivers of the said railroad or that they were operating trains on the railroad as alleged in the complaint. The defendants offered no evidence.

At the conclusion of the evidence the court gave the affirmative charge in writing for the plaintiff, and refused to give the affirmative charge requested in writing by the defendants. The rulings of the court are assigned as error.

The court below erred in refusing to give the affirmative charge for the defendants. The plaintiff failed to prove that the defendants were receivers of the Alabama, Tennessee & Northern Railway, and that the injury done to the mule was done by agents, servants, or employés of the defendants, and also failed to prove that defendants were operating a railroad. These were material averments in his complaint, and failure to prove same entitled defendants to the affirmative charge. McGhee v. Cashin, 130 Ala. 561, 30 So. 367. We quote from this case as follows:

"It is averred in the complaint that the persons who ejected plaintiff from the train were employés or agents of defendants, who as receivers were operating the railroad. This most material averment was put in issue by the plea of not guilty, and proof of it was essential to recovery. *** In the record there is a total absence of evidence to show or from which to infer that at the time of the alleged wrong defendants were receivers of or operated the road or had any control over, or relation with, any person connected with its operation, nor is there anything to show that defendants waived the production of such proof. ***"

It results from this omission of evidence to connect defendants with the alleged wrong that the refusal of the general affirmative charge requested in writing by defendant was error.

The most important question presented on this appeal, one that must be conclusive of further proceedings in this case, is the effect of the amendment to the complaint; said amendment, as it does, changing the action against defendants personally or as individuals to that of any action against them as the receivers of the Alabama, Tennessee & Northern Railway.

It has been held that under the statute of amendments, when an individual is sued in his personal capacity, the complaint may be amended so as to make the suit stand against him in his representative capacity. Lucas v. Pittman, 94 Ala. 616, 10 So. 603. But such amendments cannot have relation to the commencement of the suit, so as to avoid the bar of the statute of limitations, if the statute would operate a bar to a new suit commenced for that cause of action at the time of making the amendment. Nelson v. First National Bank of Montgomery, 139 Ala. 578-588, 36 So. 707, 101 Am.St.Rep. 52.

The question here is: Was the effect of this amendment such as would render the statute of limitations of one year (Code 1907, § 4840) available to defendants named in the complaint after it was amended. We are of the opinion that it would. The alleged injury to plaintiff's mule was committed on July 16, 1916. This action was first instituted in January, 1917, and was originally brought against John T. Cochrane and M.W. Thompson, "receivers of the Alabama, Tennessee & Northern Railway." Under the universal holdings in this court and of the Supreme Court, and in the courts generally, the suit as originally filed, and, until the amendment above referred to was made, was against the parties named personally, and the words "receivers of the Alabama, Tennessee & Northern Railway" are merely descriptio personae, Ferrell v. Ross, 200 Ala. 90, 75 So. 466, and cases cited; 31 Cyc. 99.

At the trial of the case on September 10, 1918, more than two years after...