Richardson v. Hopkins

• Decision Date: 25 October 1928
• Docket Number: 6 Div. 108
• Citation: 118 So. 465,218 Ala. 280
• Parties: RICHARDSON v. HOPKINS.
• Court: Alabama Supreme Court

118 So. 465

218 Ala. 280

RICHARDSON v. HOPKINS.

6 Div. 108

Supreme Court of Alabama

October 25, 1928

Appeal from Circuit Court, Jefferson County; J.C.B. Gwin, Judge.

Action for damages by B.H. Hopkins against P.P. Richardson and others. Judgment for plaintiff, and the named defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Huey &amp Welch and W.G. Stone, all of Bessemer, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

THOMAS J.

The suit as instituted was against a corporation, a partnership or company designated as "Nu-Grape Company of Alabama," and the named individuals, J.R. Payne, A.W Gay, J.Q. Walsh, and W.T. Walsh. The complaint was in one count, averring that defendant, as manufacturer and bottler of a beverage known and designated by the name of Nu-Grape prepared and sold for distribution in the retail trade a bottle of Nu-Grape unsuitable and unfit for human consumption, and being purchased and consumed by plaintiff made him sick, etc.

And over appellant's objection the court allowed an amendment by adding a defendant, "P.P. Richardson, doing business under the name and style of Jefferson County Nu-Grape Company," so that the style of the defendants therein shall be: "Magic City Nu-Grape Company, a corporation, Nu-Grape Company of Alabama, J.R. Payne, an individual, A.W. Gay, an individual, J.A. Walsh, an individual, and W.T. Walsh, an individual, and P.P. Richardson, doing business under the name and style of Jefferson County Nu-Grape Company, Defendants;" and by adding count No. 2, declaring for the negligence through defendants' agents in the manufacture and sale of a bottle of said beverage that was unfit for human consumption, etc.

The said P.P. Richardson and the Nu-Grape Company having been served, the former appeared specially and limiting his appearance for the purpose, among other things, to say, that it is not made to appear from the complaint that he is a proper party defendant; that there is no relation shown to exist between the wrongs charged in the original complaint and those contained in the amended complaint; that it is not shown that the matters set up in the amendment arose out of, or are connected with, the matters set up in the original complaint; no joint liability is shown; that the amendment was a departure in that it operated as a new suit under the guise of an amendment, etc.

After the evidence was all in, the court charged:

"*** The Court has given the general charge here as to all of the defendants except the Magic City Nu-Grape Company and P.P. Richardson doing business as the Jefferson County Nu-Grape Company. ***"

"*** As to whether the plaintiff makes out a case against either one of these other defendants, the Magic City Nu-Grape Company, and P.P. Richardson, doing business as the Jefferson County Nu-Grape Company, the case is submitted to this jury to determine from the evidence in the case whether or not the plaintiff proves the allegations made here against either one of these defendants that is left in the case. The burden rests upon the plaintiff to show that one of these defendants bottled this bottle of Nu-Grape that he drank, and that they were guilty of negligence in the bottling of it."

There was exception reserved to the quoted excerpt from the oral charge. Affirmative instruction was requested by appellant and refused and given as to the other defendants than Richardson and the Nu-Grape Company.

The verdict was against P.P. Richardson, doing business as the Jefferson County Nu-Grape Company, and in favor of all the other defendants.

Motion for a new trial was on the grounds for allowing such amendment; that "defendant having been made a party to this suit by amendment of the summons and complaint after the suit was commenced, and the verdict of the jury and the judgment of the court being against this defendant alone and in favor of all of the other defendants, a complete change of parties has been brought about and the verdict and judgment against this defendant is of no effect and unenforcible;" and the motion further embraced the several rulings on instructions by the court, and included the refusal of the general affirmative instruction requested by defendant Richardson.

The statute for amendments "whilst the cause is in progress," etc., as rewritten in the Code of 1923, § 9513, contains the provision that the court--

"must permit the amendment of the complaint by striking out or adding new parties plaintiff, or by striking out or adding new parties defendant, or by striking out or adding new counts or 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."

The effect of this statute was not to permit an entire change of parties, or to authorize the substitution or introduction of a new cause of action. Rice v. Davidson, 211 Ala. 693, 101 So. 604; Alabama Great Southern R. Co. v. Lawler, 213 Ala. 119, 104 So. 412.

The Magic City Nu-Grape Company ceased to do business--to manufacture and sell said beverage--when its properties sold at foreclosure of mortgage on August 30, 1926, and the defendant Richardson became the purchaser at such sale. For the time intervening after August 13, one J.R. Payne ...