Manistee Mill Co. v. Hobdy

• Decision Date: 16 December 1909
• Citation: 51 So. 871,165 Ala. 411
• Parties: MANISTEE MILL CO. ET AL. v. HOBDY.
• Court: Alabama Supreme Court

51 So. 871

165 Ala. 411

MANISTEE MILL CO. ET AL. v. HOBDY.

Supreme Court of Alabama

December 16, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from Circuit Court, Monroe County; John T. Lackland, Judge.

Action by Braxton B. Hobdy against the Manistee Mill Company for damages for personal injury. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

See also, 156 Ala. 308, 47 So. 69.

The fourteenth charge requested is as follows: "The court charges the jury that, even should you find for the plaintiff, he can recover in this action only his actual damages." In its oral charge the court said: "If you find for the plaintiff, you should give him, as part of his damages, the reasonable expenses which he had incurred on account of his injuries, reasonable compensation for his loss of time, reasonable compensation for his mental and physical suffering, and also for the permanent injury which he had sustained." The court then added that the probable expectancy of the plaintiff, as shown by the Mortality Tables, was about 40 or 41 years, "and you are authorized to consider the probable expectancy of the life of the plaintiff, as shown by the Mortality Tables, in estimating his damages. You may give the plaintiff the amount of his earnings during such expectancy as a part of his damages."

Stevens & Lyons, Barnett & Bugg, and Bayles, Hybart & Burns, for appellant.

J. N Miller and McCorvey & Hare, for appellee.

SIMPSON J.

This action for damages, on account of a personal injury, was brought by the appellee, on September 14, 1906, against "Manistee Mill Company, a corporation." There appears in the record, after the organization of the court the statement that "plaintiff amends his complaint by adding as a party defendant Vastine J. Herlong, doing business under the name of Manistee Mill Company, and alias summons and complaint to be issued to said party and the case continued." Immediately following is the summons and complaint dated February 4, 1907. Although the order of amendment is not dated, yet it is treated by the parties as a part of the entry of October 8, 1906. It was also so considered by this court, when the case was here at a previous term; the court holding that "at the first term of court after its filing and service the complaint was amended by adding as a party defendant, Vastine J. Herlong doing business under the name of Manistee Mill Company." We held, also, that subsequently an entirely new complaint was filed, and the words "body corporate" were stricken out, "leaving the complaint against Herlong and Manistee Mill Company as parties defendant, thus leaving undefined the entity of the company, whether a corporation, a partnership, or an individual doing business under that name." The appeal then, was by the plaintiff, and it was held that whether the several amendments were properly allowed was not a question presented by the record, that the plaintiff could not complain of it, and the only way in which it was presented was that the appellee (defendant) justified the court in giving the general charge in favor of the defendant on the ground of variance, but, inasmuch as the evidence showed that Herlong and the Manistee Mill Company were the same, there was no variance. Hobdy v. Manistee Mill Co., 156 Ala. 308, 47 So. 69.

In the case of Ex parte Nicrosi, 103 Ala. 104, 15 So. 507, this court held that where the affidavit, bond, and writ, in attachment case, described the defendant as "R. G. Co., a corporation," it was permissible to amend the affidavit, bond, and writ, so as to describe the defendant as "E. R., a married woman doing business by the written consent of her husband, filed and recorded in the probate court, under the name and style of the R. G. Co.," and granted a writ of mandamus, directing the allowance of said amendment. The reasoning of the court is that the R. G. Co. was the party sought to be made liable, that it was the entity sued, and whether it was a partnership, a corporation, or a name assumed by an individual were matters of mere description, and that any change in the description of the entity did not work a change of parties to the suit. Pages 107, 108, of 103 Ala., page 507 of 15 South.

In a previous case, in which the defendant was sued as the "W. Ry. of Ala.," without other descriptive words, the plaintiff was allowed to amend, by adding the words "a body corporate," as it only added words of more definite description. Western Railway of Alabama v. Sistrunk, 85 Ala. 352, 356, 5 So. 79.

On the other hand, it was held that a complaint against "D. McG., President of D. A. R'd Co.," could not be amended by substituting the D. A. R'd Co. as defendant, for the reason that the suit was originally against the individual, and could not be changed into a suit against the corporation. Davis Ave. R. Co. v. Mallon, 57 Ala. 168.

Again, it was held that a complaint against the "A. & W. P't R'd, and W. R'y Co. of Ala., a foreign corporation under the laws of Ga.," could not be amended by changing the name of the defendant to the "W. R'y Co. of Ala., a corporation incorporated under the laws of Ala.," the court saying that it could not judicially know that there was not a railroad company, incorporated under the laws of Georgia, known as the "A. & W. P't R'd and W. R'y of Ala.," nor that there was not a railroad corporation in Alabama known as the "W. R'y of Ala." Western Railway of Alabama v. McCall, 89 Ala. 375, 7 So. 650.

A suit in the name of "A. B., agent for C. D.," was simply a suit of A. B.'s, and could not be amended so...