Langston v. Bessemer Carraway Medical Center, Inc.

• Decision Date: 05 October 1983
• Citation: 439 So.2d 705
• Parties: Troy E. LANGSTON, Jr., et al. v. BESSEMER CARRAWAY MEDICAL CENTER, INC. Civ. 3801.
• Court: Alabama Court of Civil Appeals

Page 705

439 So.2d 705

Troy E. LANGSTON, Jr., et al. v. BESSEMER CARRAWAY MEDICAL CENTER, INC.

Civ. 3801.

Court of Civil Appeals of Alabama.

Oct. 5, 1983.

J. William Thomason, Bessemer, for appellants.

Crawford S. McGivaren, Jr. and Frank D. McPhillips of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellee.

HOLMES, Judge.

Plaintiff sued the defendant. A summary judgment was granted in favor of the plaintiff. The defendant appeals and we affirm.

Defendant was hospitalized at the Bessemer Carraway Medical Center, Inc., between May 19, 1976, and June 19, 1976. It is undisputed from the record before this court that he incurred charges in the amount of $5,303.90. When the bill was not paid on December 11, 1977, the plaintiff hospital filed the suit which is the basis of this appeal. Suit was for "$5,303.90 due by note" plus interest and reasonable attorney fees.

The complicated procedural history of this case need not be detailed as the instant appeal is concerned only with the May 11, 1979, summary judgment entered against defendant. Defendant, through able counsel, contends that this judgment should be overturned as the proof offered on the summary judgment motion varied fatally from the allegations of the complaint. In support of this argument, defendant cites Mid-State Homes, Inc. v. Cone, 294 Ala. 310, 316 So.2d 333 (1975); and W.B. Davis Hosiery Mill, Inc. v. Word Lumber Co., 49 Ala.App. 492, 273 So.2d 469 (1972), cert. denied, 290 Ala. 372, 273 So.2d 474 (1973). The "fatal variance" upon which defendant relies is the following: the complaint urges that the indebtedness is "due by note" whereas the proof offered on the summary judgment, to wit, a supporting affidavit, established that the indebtedness was based not on a note but instead on an open account.

Plaintiff opposes, citing Alabama Rule of Civil Procedure 15(b), and urging this court to find that because defendant has never before objected to the open account evidence presented on the summary judgment motion the pleadings were by operation of rule 15(b) automatically amended to conform to the evidence. See, e.g., Haynie v. Byrd, 429 So.2d 973 (Ala.1983); Bischoff v. Thomasson, 400 So.2d 359 (Ala.1981).

After having reviewed the record in this case this court must adopt plaintiff's argument and find that the "fatal variance" between the complaint and the proof was waived by defendant's failure to object to the proof offered on the summary judgment motion, and, further, that by operation of A.R.Civ.P. 15(b) the complaint was amended to support an action on an open account. The facts of this case establish that plaintiff's motion for summary judgment with supporting affidavit proffering the amount was due by open account was filed on December 5, 1978, that the motion was heard--with defendant's counsel present--on April 27, 1979, and that summary judgment was rendered on May 11, 1979. At no time does the record reveal defendant objected to evidence of the open account debt, nor offered evidence to the contrary. This total failure to object to the open account issue injected by plaintiff's motion, especially in light of the...