Hudson v. Coffee County

• Decision Date: 08 November 1973
• Citation: 291 Ala. 596,285 So.2d 101
• Parties: In re Gaston Leroy HUDSON v. COFFEE COUNTY et al. Ex parte Gaston Leroy Hudson. SC 368.
• Court: Alabama Supreme Court

Page 101

285 So.2d 101

291 Ala. 596

In re Gaston Leroy HUDSON v. COFFEE COUNTY et al. Ex parte Gaston Leroy Hudson.

SC 368.

Supreme Court of Alabama.

Nov. 8, 1973.

Francis H. Hare, Birmingham, for petitioner.

Cassady & Fuller, Rowe, Lane & Rowe, Enterprise, G. A. Lindsey, Elba, for respondents.

HARWOOD, Justice.

This is a mandamus proceeding. The petitioner sought an order to direct the Honorable Riley Green, as Judge of the Circuit Court of Coffee County, Alabama, Elba Division, to expunge an order by which the respondent judge set aside an amendment to a complaint.

This court issued a rule nisi to Judge Green, and he has now filed his answer.

It appears from the record before us that Gaston Leroy Hudson filed a complaint in which multiple defendants were designated in the caption of the complaint.

The single count of the complaint claimed $1,000,000.00 of the Defendants for that on to-wit, 19 January 1972, at a place described, the Defendants were in charge of a truck, sometimes known as a 'low boy' on which a bulldozer was being moved; which said equipment was in charge of the Defendants; that the plaintiff was on property with the consent of the owner observing the movements of the bulldozer then being moved on the truck, and that, on said occasion the Defendant negligently caused or allowed said equipment or said truck of which They were in charge to be operated in such a fashion that as a proximate consequence thereof said truck struck the plaintiff causing certain injuries (which were catalogued); it was further averred that on the occasion of the incident the Defendants were then and there engaged in a proprietary function, etc.; the count also asserted that the plaintiff had filed on 14 July 1972, a claim which was attached to the complaint as Exhibit A.

Exhibit A is a copy of a claim filed by the plaintiff in the Commissioners Court of Coffee County, Alabama, to comply with the provisions of Section 115, Title 12, et seq., Code of Alabama 1940, pertaining to filing claims against a county, setting forth the cause and nature of his injuries. The claim is styled 'Gaston Leroy Hudson, plaintiff,' and the defendants, so called in the claim, are the same as those listed in the caption of the complaint in this suit. In this claim the parties designated as Defendants in the caption of the claim are referred to throughout the claim as Defendants, or Parties, i.e., in the plural.

The defendants appearing specially in the suit below filed pleas in abatement, and the plaintiff filed a motion to strike such pleas. This matter was set for hearing on 6 February 1973.

At this hearing it was called to the attention of counsel for plaintiff that the letter 's' was omitted from the word 'defendant' in that phrase of the count which asserted:

'The defendant negligently caused or negligently allowed said equipment or said truck of which they were in charge or control, as aforesaid, * * *'

Counsel for the plaintiff thereupon in open court amended said count by adding an 's' to the word 'defendant.' This being done, counsel for the defendants filed a motion to strike the amendment, asserting among other grounds that the complaint showed on its face that the alleged injury of the plaintiff occurred on 19 January 1972, and that the amendment was attempted on 6 February 1973, more than one year after the occurrence complained of; that the original complaint failed to state a cause of action, and the attempted amendment stated a new cause of action which was barred by the statute of limitation of one year.

On 30 March 1973, the court granted the motion to strike the amendment, that is, the letter 's' as above mentioned, and on 10 April 1973, sustained the defendants demurrers to the complaint.

After this ruling the plaintiff filed this petition for a writ of mandamus.

In his answer the respondent, Judge Green, averred that it was his conclusion that the complaint as originally filed failed to state a cause of action; it would not support a valid judgment; no default judgment could be entered thereon; and if a verdict should be returned thereon the Defendant would be entitled to a judgment non obstante veredicto. It was further the respondent's conclusion that the amendment created a new cause from that originally attempted to be charged in the complaint, and therefore could not relate back to the commencement of the suit. The answer further avers that the statute of limitations had run, and the demurrer to the complaint was properly sustained. The answer also avers that the amendment having wrought a new and different cause of action, the provisions of Section 239, Title 7, Code of Alabama 1940, are not applicable.

Section 239, Title 7, Code of Alabama 1940, reads:

'The court must, whilst the cause is in progress, amend all and every such imperfection and defect of form, on motion of the party, without costs and without delay, unless injustice will thereby be done to the opposite party, and must permit the amendment of the complaint by striking out or adding new parties plaintiff, or by striking out or adding new counts of statements of the cause of action, which could have been included in the original complaint or plea, and such amendment shall relate back to the commencement of the suit, and it shall not be held that such new counts or statements of the cause of action relate to new or other causes of action, so long as they refer to the same transaction, property and title and parties as the original, and where this is not apparent on the averments of the pleading, it shall be a question of fact for the jury. But the court shall have the right to refuse the allowance of any amendment to the complaint after the conclusion of the argument, when in its judgment the completion of the trial of the cause would be unreasonably delayed, or when in its judgment injustice would result.'

We are not in accord with the conclusions of the respondent as stated in his answer.

In the summons the names of all of the defendants were set forth. Likewise, in the caption to the complaint all of the defendants are named.

In the count as originally drawn the plural 'defendants' was used in stating that the plaintiff claimed of the Defendants, etc., and that 'the Defendants were in charge' of a truck, and that said equipment was in charge and control of the 'defendants.' Following these averments using the plural of the word 'defendants' it was set forth:

'* * * and that on said occasion and at said location the Defendant negligently caused or negligently allowed said equipment or said truck of which They were in charge or control, as aforesaid, to be operated * * *' (Emphasis supplied.)

After this averment, there is yet another averment in which it is stated that:

'* * * on the occasion of the incident referred to herein the Defendants were then and there engaged in a proprietary function * * *' (Emphasis supplied.)

One purpose of our amendment statute (Section 239, supra) is to discourage technical objections and to secure a trial of the cause on the merits. Farrow v. Bragg, Adm'r., 30 Ala. 261, at 267. And if an amendment does not take an opponent by surprise and he is ready to meet the amendment, we fail to see how an amendment could work an injustice to the opponent. See Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158. Clearly, merely adding an 's' to the word 'defendant' did not disturb the reference to the transaction described in the count, which remained the same. Clerical errors may be self correcting by the context of the pleading. Clinton Mining Co. v. Bradford, 200 Ala. 308, 76 So. 74; Starr Piano Co. v. Zavelo, 212 Ala. 369, 102 So. 795.

In view of the multiple defendants named in the summons, the use of the plural word 'defendants' in the caption of the complaint, and the repeated description of the defendants as 'defendants' in the body of the count except in one place, where even then the pluristic 'said truck of which They were in charge' follows the word 'd...