Hickman v. Hannas

• Decision Date: 13 October 1955
• Docket Number: 6 Div. 636
• Parties: Ellen Lynn HICKMAN et al. d/b/a Molton Hotel v. Ruth HANNAS.
• Court: Alabama Supreme Court

Page 795

82 So.2d 795

263 Ala. 399

Ellen Lynn HICKMAN et al. d/b/a Molton Hotel v. Ruth HANNAS.

6 Div. 636.

Supreme Court of Alabama.

Oct. 13, 1955.

Lange, Simpson, Robinson & Somerville and Wm. H. Cole, Birmingham, for appellants.

Hugh A. Locke, Hugh A. Locke, Jr., and Ryburn H. Bailey, Birmingham, for appellee.

LIVINGSTON, Chief Justice.

This is an action by Ruth Hannas to recover damages of the defendants, who were doing business as the Molton Hotel in Birmingham, for the alleged conversion of certain chattels. The complaint was originally filed in three counts, to which the defendants demurred. The demurrer was overruled and the case went to trial on the defendants' plea of the general issue in short by consent. During the course of the trial, the plaintiff amended the complaint to strike counts one and three, leaving only count two, which alleged a conversion by defendants of certain musical materials, including original manuscripts of wellknown composers, notes gathered in preparation for writing several books on musical subjects, and personal clothing. The trial by jury resulted in a verdict and judgment in favor of the plaintiff, whereupon defendants filed a motion for new trial which was overruled. Defendants then perfected this appeal.

One or more grounds of defendants' demurrer to the complaint took the point that the complaint failed to allege that the property alleged to have been converted was the property of the plaintiff. Count two upon which the case was tried does not show ownership in the plaintiff at the time the property was alleged to have been converted. It was, therefore, error to overrule the demurrer to this count. Weil v. Ponder, 127 Ala. 296, 28 So. 656; Abercrombie v. Pell, 235 Ala. 396, 179 So. 371.

Appellee earnestly insists that under Supreme Court Rule 45 this is not reversible error since ownership in the plaintiff was proven by the evidence without conflict, and the jury was instructed that it would have to find that the property belonged to plaintiff in order to allow plaintiff to recover.

In Jackson v. Vaughn, 204 Ala. 543, 86 So. 469, 471, this court considered the application of the principle of error without injury under Rule 45, and said:

'* * * Under the mandate of this rule the fate of any judgment in a civil case that is tainted with error in the pleadings or procedure leading thereto is dependent upon what is disclosed by the entire record in that particular case. That is to say, each case stands upon its facts, and, of necessity, no iron-clad principle can be announced of the construction to be placed on this rule. However, we may say that under it our court has declared generally that if a complaint (not so fatally defective that a judgment based thereon would be arrested on motion) or a plea in a civil cause be defective for the reason that a necessary allegation is omitted, and a demurrer pointing out this defect has been improperly overruled, the judgment following will not be reversed on this account if the entire record discloses that the trial court by an appropriate charge instructed the jury specifically as to the necessity of proving the omitted allegation, and the record further shows that this omitted allegation was proved and considered. Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann.Cas.1917D, 929; Vance v. Morgan, 198 Ala. 149, 73 So. 406; Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74, 78; Southern R. Co. v. Harris, 202 Ala. 263, 80 So. 101, 104; Birmingham Southern R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339, 341; Ex parte Minor, 203 Ala. 481, 83 So. 475 .'

See, also, Southern R. Co. v. Dickson, 211 Ala. 481(4), 100 So. 665.

It will be noted that the court made the qualification that the count be not so fatally defective that a judgment based thereon would be arrested on motion. When a complaint is insufficient to state a cause of action, the judgment may be vacated on motion at any later time on the application of a party affected. Chandler v. Price, 244 Ala. 667, 15 So.2d 462, and cases cited therein.

We find no case holding that the erroneous overruling of a demurrer to a complaint is error without injury where the complaint is so defective as not to state a cause of action. In each of the cases cited by appellee in support of his contention, the complaint, although defective in some way, states a cause of action.

Although Crouch v. De Luxe Cab Co., 261 Ala. 239, 73 So.2d 743, 746, involves a defective plea of contributory negligence and a demurrer thereto, the same principles of appellate practice are involved as in the case at bar. In that case, Mr. Justice Stakely said:

'But it is very earnestly insisted that the omitted allegation of duty was nevertheless made an issue on the trial and the court clearly and explicitly so instructed the jury. In other words the point is taken that under Rule 45 we should consider the omitted allegation in Plea 2 to be error without injury. We cannot sustain this position. In the case of Atlantic Coast Line R. Co. v. Jackson, 225 Ala. 652, 144 So. 813, 814, it was held that a defect in the complaint should not necessarily cause a reversal. It was said:

"When a count states a cause of action, though there may be some defect which is pointed out by demurrer, if the action is tried upon the theory that such averment is made, and the jury is required to find in accordance with the correct rule in that respect, the error is held to be without prejudice.'

'To the same effect we refer to Southern R. Co. v. Dickson, 211 Ala 481, 100 So. 665; Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann.Cas.1917D, 929.

'The failure to allege in Plea 2 however the duty owing by the plaintiff to the defendant is not a mere defect in the plea. On the contrary, the failure to allege such duty constitutes the omission of a vital and essential allegation in the plea, which deprives the plea of all defensive effect....