Ex parte Sullivan

• Decision Date: 09 April 1895
• Citation: 106 Ala. 80,17 So. 387
• Parties: EX PARTE SULLIVAN.
• Court: Alabama Supreme Court

17 So. 387

106 Ala. 80

EX PARTE SULLIVAN.

Supreme Court of Alabama

April 9, 1895

Application for writ of mandamus by Martin H. Sullivan to compel the allowance of a proposed amendment to the complaint in his action against the Louisville & Nashville Railroad Company. Writ granted.

D. S Troy, for petitioner.

J. M Falkner, Thos. G. Jones, and W. A. Gunter, for respondent.

McCLELLAN J.

The only limitation upon the right of a plaintiff in a civil action at law to amend the complaint at any time before the cause is finally submitted to the jury, and they have retired, is that the form of the action must not be changed there must not be an entire change of parties, nor can there be the substitution or the introduction of an entirely new cause of action. Mahan v. Smitherman, 71 Ala. 563. In the case of Martin H. Sullivan, Surviving Partner, etc., v. The Louisville & N. R. Co., pending in the Montgomery city court, the plaintiff asked leave to amend his complaint, and exhibited the proposed amendment. The request was denied, on the ground that the amendment presented an entirely new cause of action; and this court is prayed for a writ of mandamus to compel the allowance of said amendment, the sole question before us being whether the proposed amendment stated such new cause of action.

The original complaint counted upon breaches of article 4 of a contract entered into between plaintiff and defendant on February 27, 1880. This article secured to Sullivan the transportation by the Louisville & Nashville Co. of logs timber, and lumber over the Mobile & Montgomery, the Selma & Gulf, and the Pensacola Railroads, all which were being operated by said company, at specified rates of freight; and the complaint was that the defendant, having received and transported logs, timber, and lumber under said contract, violated the same by charging, and forcing the plaintiff to pay under protest, higher rates than those thus stipulated, wherefore damages in the sum of $100,000 were claimed. This article of said contract was set out in the original complaint, except these words, "not less than twenty car loads when shipped on main track," which performed the office of restricting the provisions of said contract as to rates of freight charges to shipments when made on main track in lots of 20 car loads or more. The theory of the plaintiff in the omission of these words, in setting out the article, was that the stipulation evidenced by them had on the facts averred in the complaint been waived by the defendant, in that it had received for transportation and transported all the shipments as to which a breach in the rate of charges was averred under the contract, and hence that the defendant was entitled to charge only the contract rates, though it might have been justified in refusing to receive on the main track and transport less than lots of 20 car loads. This article 4, as copied into the original complaint, contains also this further stipulation: "The provisions of this article (fourth) are to be embraced in contracts to be severally and formally entered into by each of said corporations [the Mobile & Montgomery Co., the Selma & Gulf Co., and the Pensacola Co.] with the party of the first part, Sullivan, and guarantied by the party of the second part, the Louisville & Nashville Co. The proposed amendment sets out said...