Hess v. Birmingham Ry., L. & P. Co.

• Citation: 42 So. 595,149 Ala. 499
• Parties: HESS v. BIRMINGHAM RY., L. & P. CO.
• Decision Date: 29 November 1906
• Court: Supreme Court of Alabama

42 So. 595

149 Ala. 499

HESS v. BIRMINGHAM RY., L. & P. CO.

Supreme Court of Alabama

November 29, 1906

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

"To be officially reported."

Action by George P. Hess against the Birmingham Railway, Light &amp Power Company for personal injuries. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The complaint in this cause, as originally filed, contained two counts, as follows: Count 1: "Plaintiff claims of the defendant $5,000 as damages, for that heretofore, to wit, on the 24th day of January, 1903, the defendant was a common carrier of passengers over and along a railway running from Birmingham to Woodlawn, Jefferson county, Alabama, by means of a car operated by electricity; that on said day, while plaintiff was on said car, being carried by defendant as its passenger on said car, said car collided with another car at a point on said railway in or near said Birmingham, and as a proximate consequence thereof plaintiff was [here follows a detailed description of his injuries and special damages]. And plaintiff alleges that said car, upon which he was as aforesaid, collided with said other car, and plaintiff suffered said injuries and damages, by reason and as a proximate consequence of the negligence of defendant in or about carrying plaintiff as its passenger as aforesaid." Count 2 was the same as count 1, down to and through the allegation of injuries and special damages, and adds the following: "Plaintiff avers that defendant wantonly or intentionally caused plaintiff to suffer said injuries and damages as aforesaid by wantonly or intentionally causing or allowing said collision." Demurrers were interposed to these counts, but no action on demurrers is shown by the record. The original complaint was filed on the 24th of March, 1903. On the 18th of October, 1904, the plaintiff by leave of the court amended his complaint as follows: (1) He amends each count of the complaint by striking therefrom the word "Woodlawn," where it appears in the complaint and by inserting in lieu thereof the words "West End." (2) By striking from the first count the word "defendant," where it last occurs in said count and by inserting in lieu thereof the words "defendant's servant or agent, acting within the line and scope of his authority as such." (3) By striking from the first count of the complaint the word "its," where it last occurs in said count, and by inserting in lieu thereof the word "defendant's." (4) By striking from the second count the word "defendant," where it last occurs therein, and inserting in lieu thereof the words "defendant's servant or agent, acting within the line and scope of his authority as such." Defendant moved to strike the first and second counts of the complaint as amended on the grounds of a departure, a change of cause of action, and because not within the as pendens of the original suit. These motions being overruled, the defendant pleaded the general issue and the statute of limitations of one year to the amended complaint. At the request of the defendant, after the evidence had been given, the court gave the general affirmative charge.

Bowman Harsh & Beddow, for appellant.

Tillman, Grub, Bradley & Morrow, for appellee.

DOWDELL J.

The complaint contained two counts, both of which, subsequent to the filing, were amended. The only question presented is whether...