Gaines v. Birmingham Ry., Light & Power Co.

• Decision Date: 16 December 1909
• Citation: 51 So. 238,164 Ala. 6
• Parties: GAINES v. BIRMINGHAM RY., LIGHT & POWER CO.
• Court: Alabama Supreme Court

51 So. 238

164 Ala. 6

GAINES v. BIRMINGHAM RY., LIGHT & POWER CO.

Supreme Court of Alabama

December 16, 1909

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by Ida Gaines against the Birmingham Railway, Light & Power Company for injuries as a passenger. Defendant had judgment and plaintiff appeals. Reversed.

Jere C King, for appellant.

Tillman Grubb, Bradley & Morrow, for appellee.

ANDERSON J.

The first count of the complaint claimed damages for an injury sustained by the plaintiff as a passenger on defendant's car, operated on its line between Birmingham and Bessemer said injury being sustained on or about the 5th day of May, 1906, at or near Powderly. This count also sets out the quo modo, which, in effect, was the negligent starting of the car while plaintiff was attempting to alight, thereby throwing her to the ground and injuring her, etc. The third count, offered by way of amendment, and being the one upon which the case was tried, set out injuries sustained on the same railroad, at the same place, and at the same time as set forth in the first count. The third count did not attempt to set out the quo modo, but averred negligence generally in and about the transportation of the plaintiff as a passenger. Under our liberal system of pleading, this third count was broad enough to include the injury and negligence detailed in the first count, and did not show upon its face a separate and distinct cause of action from the one set out in the original complaint, and the amendment was properly allowed. Section 5367 of the Code of 1907. Indeed, counsel for appellant does not question the propriety of the amendment as disclosed upon the face of the counts, but contends that, notwithstanding the amendment was allowable, the proof developed a different transaction or cause of action from the one set out in the original count, and that it was not within the lis pendens, and could not relate back, so as to intercept the statute of limitations.

The question of the right to amend, and what constitutes a departure, has been rather a perplexing one, and upon which this court has not been entirely harmonious. But the majority holding in the case of Alabama Co. v. Heald, 154 Ala. 580, 45 So. 686, which has been since cited approvingly by this court, and the case of Alabama Co. v. Hall, 152 Ala. 262, 44 So. 592, are conclusive on this subject, and the rule there laid down has been approvingly emphasized by a change in the language of the Code of 1907 (section 5367), from what it was in section 3331 of the Code of 1896. In the Heald Case, supra, we held the criteria to be as follows: ...