Havard v. Palmer & Baker Engineers, Inc.
Decision Date | 16 May 1974 |
Citation | 293 Ala. 301,302 So.2d 228 |
Parties | Ruby W. HAVARD, Administratrix of the Estate of Henry N. Havard, Deceased v. PALMER & BAKER ENGINEERS, INC., a corp. SC 547. |
Court | Alabama Supreme Court |
R. P. Denniston and Horace Moon, Jr., Mobile, for appellant.
James J. Duffy, Jr., and John N. Leach, Jr., Mobile, for appellee.
This is the second appeal of this case to this court. The first appeal is reported in City of Mobile v. Havard, 289 Ala. 532, 268 So.2d 805 (1972). The judgment of the trial court against Palmer & Baker was reversed and remanded by this court because the court held that plaintiff had failed to allege a duty owed to plaintiff's decedent by Palmer & Baker, the breach of which was the proximate cause of the decedent's injury, and therefore, the affirmative charge should have been given by the trial judge. The City of Mobile was held not to be liable for the injury and death from burns suffered by plaintiff's intestate when his car was rear-ended in the Bankhead Tunnel by a truck and caught fire. The reason was governmental immunity.
After remand, Havard amended her complaint by adding Count Eight set out hereinbelow:
'Plaintiff claims of the Defendant the sum of One Million Dollars ($1,000,000.00) arising from the following:
The demurrer filed by defendant Palmer & Baker was sustained. Havard took a nonsuit and appealed. Whether the court was correct in sustaining the demurrer to Count Eight is the assigned error on this appeal.
When this court reverses and remands a case without further direction, the trial court may, in the exercise of sound judicial discretion, permit further pleadings and proof as justice and equity dictate. Federal Land Bank v. First National Bank of Scottsboro, 237 Ala. 84, 185 So. 414 (1938); Sovereign Camp, W.O.W. v. Gay, 217 Ala. 543, 117 So. 78 (1927). The doctrine of res judicata which Palmer & Baker argue, is inapplicable here. In permitting amendment to the complaint the trial court did not abuse its discretion. However, the sufficiency of the amended complaint filed before July 3, 1973, is not governed by the Alabama Rules of Civil Procedure. Phillips v. D. & J....
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