Ex parte Godfrey

• Decision Date: 30 May 1963
• Docket Number: 6 Div. 707
• Citation: 275 Ala. 668,158 So.2d 107
• Parties: Ex parte Isaac GODFREY.
• Court: Alabama Supreme Court

Page 107

158 So.2d 107

275 Ala. 668

Ex parte Isaac GODFREY.

6 Div. 707.

Supreme Court of Alabama.

May 30, 1963.

Rehearing Denied Dec. 12, 1963.

Rives, Peterson, Pettus & Conway, and Thos. Seay, Birmingham, for petitioner.

Cabaniss & Johnston, Leigh M. Clark and L. Murray Alley, Birmingham, for respondent.

LIVINGSTON, Chief Justice.

This is an original petition for peremptory writ of mandamus filed in this Court by Isaac Godfrey against Honorable Ingram Beasley, as Judge of the Circuit Court of Jefferson County, Alabama, to command him to allow an amendment of the complaint in that certain cause styled: Isaac Godfrey, Plaintiff, v. Southern Railway Company, a Corporation, Defendant, now pending in the Circuit Court of Jefferson County, Alabama, at law.

The complaint as originally filed, on September 10, 1957, contained one count, Count 1, and is brought under the Federal Employers' Liability Act.

On October 2, 1959, petitioner filed an amendment to the complaint consisting of two counts, A and B. The amendment was disallowed on the theory that it alleged matters which constituted a departure from the original complaint, both under the state law and the federal statute, and because it was offensive to the substantive law of the Federal Employers' Liability Act in that it was barred by the limitations of Title 45, Sec. 56, U.S.C.A.

The only real issue presented by the petition and subsequent pleadings is whether respondent properly disallowed the amendment containing Counts A and B.

This Court issued a rule nisi and the respondent, Honorable Ingram Beasley, as Judge of the Circuit Court of Jefferson County, Alabama, has filed a demurrer to the petition and also an answer. In his answer, the respondent attached to and made a part thereof, certain answers of the plaintiff to interrogatories propounded to him by defendant.

Count 1 of the complaint reads as follows:

'Plaintiff claims of the defendant the sum of, to wit, Fifteen Thousand and No/100 ($15,000.00) Dollars, as damages, for that heretofore, on to wit, the 11th day of September, 1956, the defendant was engaged in the operation of a railroad in Interstate Commerce and plaintiff was employed by such carrier in such commerce and while engaged in and about his duties as such employee on the premises of defendant at its Norris Yards, at or near Irondale, in Jefferson County, Alabama, the plaintiff stepped in some acid which had been spilled on the floor by some servant, agent, or employee of defendant whose name is to plaintiff unknown, and as a direct and proximate result thereof the plaintiff suffered acid burns on his feet and suffered great physical pain and mental anguish; was caused to lose a large amount of time and money in and about trying to treat, cure and heal his said injuries; suffered fear of losing his life, was caused to lose his right leg, which had to be amputated, and plaintiff was rendered permanently less able to earn a living.

'And plaintiff avers that all of his said damages and injuries were suffered as a direct and proximate result of the negligence of the officers, agents or employees of defendant in and about allowing said acid to be and remain on said floor, or in failing to provide a reasonably safe place for plaintiff to work, hence this suit.'

Counts A and B, the proposed amendment, read as follows:

'COUNT A:

'The plaintiff claims of the defendant the sum of Fifty Thousand ($50,000.00) Dollars, as damages, for that heretofore on, to wit, the 11th day of September, 1956, and for a period of, to wit, 15 years prior thereto, plaintiff was employed by the defendant as a laborer and during said period of employment the defendant was a common carrier by railroad and as such common carrier was engaged in the business of operating a railroad for the transportation of freight and passengers in interstate commerce and plaintiff avers that a part of his duties as such aforesaid employee of the defendant were in furtherance of such aforesaid interstate commerce or directly or closely and substantially affected such interstate commerce and plaintiff avers that on, to wit, the 2nd day of April, 1945, while plaintiff was firing a steam locomotive for the defendant at the Finley Shops of the defendant in the City of Birmingham, Jefferson County, Alabama, plaintiff's body and limbs were badly burned, resulting in injury and scarring of the skin on plaintiff's body and limbs, and plaintiff avers that he is an ignorant negro and that he did not know, but that the defendant knew or by the exercise of reasonable diligence should have known, that to thereafter assign plaintiff to work where his body and limbs would be exposed to coal soot, fuel oil, lubricating oil, heavy petroleum greases and chromate compounds would be unsafe and dangerous to the health or limbs of plaintiff, and plaintiff avers that after such aforesaid injury and scarring of his body and limbs, the defendant caused plaintiff to be assigned to work at the said Finley Shops of the defendant and thereafter to work at the Diesel Shop of the defendant in the Norris Yard of the defendant at Irondale in Jefferson County, Alabama, where plaintiff's body and limbs were almost daily exposed to either coat soot, or fuel oil or lubricating oil or heavy petroleum greases or chromate compounds during and over period of, to wit, ten years immediately prior to the 11th day of September, 1956, and plaintiff avers that during and over the said ten year period he was thereby caused to be injured by the defendant to such extent that during the year 1956 and prior to the commencement of this suit, the accumulated effects of said injuries were such that the same manifested themselves by causing a skin cancer on plaintiff's right foot which necessitated the removal of plaintiff's right foot and part of his right leg by surgical operation on, to wit, the 29th day of September, 1956, and plaintiff was thereby caused to suffer great physical pain and mental anguish and was caused to be maimed and crippled for life and he was caused to lose his job with the defendant and plaintiff's power and capacity to work and earn money was permanently impaired; and plaintiff avers that all of his aforesaid injuries and damages proximately resulted, in whole or in part, from the negligence of the officers, agents, or employees of the defendant, while acting within the line and scope of their employment by the defendant, or by reason of a defect or insufficiency due to the negligence of the defendant in its engines, works, machinery, appliances or other equipment. Plaintiff avers that this cause of action is based upon and brought under an Act of the Congress of the United States generally referred to as the Federal Employers' Liability Act, Title 45, U.S.C.A., Section 51.'

'COUNT B:

'For COUNT 'B' of plaintiff's complaint, the plaintiff adopts the allegations of COUNT 'A' of his complaint down to and including the allegation 'plaintiff's power and capacity to work and earn money was permanently impaired;' and for this COUNT 'B' plaintiff adds the following additional allegations, viz: 'and plaintiff avers that all of his aforesaid injuries and damages proximately resulted, in whole or in part, from the negligence of the defendant in that the defendant negligently failed to exercise reasonable care to furnish or maintain plaintiff a reasonably safe place to perform his aforesaid work for the defendant. Plaintiff avers that this cause of action is based upon and brought under an Act of the Congress of the United States generally referred to as the Federal Employers' Liability Act, Title 45, U.S.C.A., Sec. 51.'

It is to be noted that the original complaint was filed in this cause on September 10, 1957, and alleges that the injuries sued for occurred on the 11th day of September, 1956, and that the amendment was filed on October 2, 1959, and amended on December 2, 1959, more than three years after the injuries are alleged to have occurred in the original complaint.

While our statute on amendments, Sec. 239, Title 7, Code 1940, is broad and liberal, it is the creation of the lawmaking power. It provides that 'The court must, whilst the cause is in progress, * * * permit the amendment of the complaint * * * by striking out or adding new counts or statements of the cause of action, * * *' etc.; the limitation placed upon the right of the amendment being, that by it there shall not be wrought a different cause of action or an entire change of parties.

Sec. 220, Title 7, Code 1940, provides that all actions ex delicto may be joined in the same suit. But there is nothing in that section relative to amendments after the suit is filed. Amendments are controlled entirely by Sec. 239, supra.

Petitioner argues that since all the counts, both original and amendatory, allege the ultimate loss of plaintiff's right leg that both complaints allege the same injury. But a careful analysis proves otherwise.

Count 1 alleges that plaintiff's right foot was burned when he stepped in acid, naming the specific time, place and circumstances. If the plaintiff stepped in the acid through the breach of some duty by defendant a cause of action at that instance arose in favor of plaintiff and against the defendant.

A perusal of the amendatory counts demonstrates that they are based on entirely other breaches of duty at different times and places. The ultimate loss of plaintiff's leg is unquestionably an element of his damages, just as are medical expenses and loss of wages, but they are not injuries giving rise to the cause of action.

The plaintiff's original complaint states a cause of action which would entitle plaintiff to recover without proof of the loss of the leg as an element of damage. In the amendatory counts, the injury alleged is the contracting of cancer. The invasion of plaintiff's person is alleged to be the exposure and contact with the alleged irritants, which, according to the complaint, was such that 'the...