Spurling v. Fillingim

• Decision Date: 18 March 1943
• Docket Number: 4 Div. 276.
• Citation: 12 So.2d 740,244 Ala. 172
• Parties: SPURLING v. FILLINGIM.
• Court: Alabama Supreme Court

12 So.2d 740

244 Ala. 172

SPURLING v. FILLINGIM.

4 Div. 276.

Supreme Court of Alabama

March 18, 1943

Appeal from Circuit Court, Pike County; Arthur Glover, Special Judge.

The following charge was refused to defendant "Unless the jury is satisfied from the evidence, after weighing all the evidence in this case that plaintiff was injured as the proximate result of the proximate cause of the negligence of Lawson Spurling, the plaintiff cannot recover of the defendant, Lawson Spurling."

Carnley & Carnley, of Elba, for appellant.

J C. Walters, of Troy, for appellee.

BROWN, Justice.

The motion to strike the bill of exceptions is rested on the sole ground that the appellant did not endorse on the original [bill of exceptions] a certificate to that effect-that is that he furnished to the adverse party or his attorney a copy thereof. Code 1940, Tit. 7, § 822.

The applicable provision in said section, inserted by the Code Committee, and appearing for the first time in the law, when the code was adopted is: "The party filing said bill [with the Clerk of the Court] must furnish to the adverse party, or his attorney, a copy thereof, and must endorse on the original a certificate to that effect over his signature." § 822, supra.

The purpose of this provision was to afford prima facie evidence on the bill of exceptions, that the adverse party had been furnished with such copy, controvertable, of course, by countervailing evidence that such copy had not been so filed. The important and material fact is not the certificate itself, but that appellant's adversary had such copy furnished, or he has had otherwise full opportunity to pass upon the bill of exceptions and make objections thereto, if in his judgment the bill was not correct. The mere absence from the bill of exceptions of such certificate is not sufficient grounds for striking the same, unless it is accompanied by a showing that the appellee was denied the right to examine and make objections to the bill. Clark v. Henderson, Ala.Sup., 12 So.2d 743. No such showing is made. The motion to strike is, therefore, not well taken and will be denied.

The appeal is by the defendant Lawson Spurling from a judgment in favor of the plaintiff, an infant suing prochein ami, in an action of trespass on the case to recover damages for personal injuries received by the plaintiff in a collision between two automobiles on a public highway near Brundidge in Pike County, on December 24, 1939, in one of which the plaintiff was a passenger, the other being operated by the defendant Foy Spurling.

The complaint as originally filed January 9th, 1940, consists of a single count, claiming such damages against said Foy Spurling and C. E. Dorsey. Said count was rested on the doctrine respondeat superior and alleged that the damnifying act was negligently committed by said Foy Spurling as the agent or servant of said Dorsey, and while acting within the line and scope of his employment.

The complaint was amended on June 25th, 1941, more than eighteen months after the date of the alleged injury, "by making Lawson Spurling a party defendant thereto, and for Count 2 by striking the name of 'Dorsey' from Count One of the original complaint, and substituting the name of Lawson Spurling, and by adopting all other allegations of Count One."

Count 3 was attached to the foregoing and filed therewith.

The effect of the amendment was to leave in the complaint three counts, with Foy Spurling and Lawson Spurling as parties defendant.

Counts one and two as amended, ascribed the plaintiff's injury and damages to the negligence of Foy Spurling in the operation of the automobile as the agent or servant of Lawson Spurling, while acting within the scope of his employment. Count three ascribed the damnifying act to the negligence of Foy Spurling in the operation of said automobile, and as to Lawson Spurling avers, "That said automobile operated by Foy Spurling belonged to his father Lawson Spurling, and the said automobile was used, with the permission expressed or implied, of said father and the said father knew that his son, Foy Spurling was a wreckless [reckless] and negligent driver of an automobile, or by the exercise of reasonable diligence he could have ascertained that he was such driver, and notwithstanding said knowledge, or failing to exercise reasonable diligence, he permitted the said son to use said automobile on the occasion aforesaid, and the plaintiff's damages were proximately caused by the concurrent negligence of the father, as stated herein, and the negligence of the said son, as stated herein," * * *. [Italics and brackets supplied.]

After demurrer filed by each of the defendants severally, to each of said counts, was overruled, the plaintiff again amended by striking count one. The demurrers were refiled and overruled, and the defendants pleaded separately the general issue, and the statute of limitation of one year. The defendant Lawson Spurling pleaded specially, to state the substance of the special plea, that he had nothing to do with the operation of the automobile on the occasion of plaintiff's injury, that said automobile was jointly owned by the defendants, that he did not give the said Foy Spurling permission to operate the same on said occasion, and knew nothing about its use by said Foy Spurling until after the alleged injury.

On motion of the plaintiff the pleas of the statute of limitations, filed separately by the defendants, were stricken, and they each reserved exceptions.

It does not appear from the record what disposition was made of Count 2 of the complaint, but it affirmatively appears that the case went to the jury on Count 3 only. There is no evidence showing the relation of master and servant existed between the defendants, an essential element of the case as presented by said Count 2. So we assume that it was either abandoned or withdrawn. This situation, if error intervened in the ruling on the question of misjoinder of counts, renders such ruling innocuous. Sovereign Camp, W. O. W. v. Carrell, 218 Ala. 613, 119 So. 640.

We, therefore, limit our consideration to the case as presented on Count 3, and the rulings of the court in respect thereto.

The first contention is that the amendment worked an entire change of the cause of action. This cannot be sustained as it clearly appears from the averments of the several counts that they refer to the same subject-matter, towit, personal injury and damage to plaintiff in a collision between an automobile driven by the defendant Foy Spurling and an automobile in which the plaintiff was an occupant on December 24th, 1939, on the Bee-line Highway about 2 1/4 miles beyond Brundidge in Pike County, Alabama. Code 1940, Tit. 7, § 239; Gambill v. Fox Typewriter Co., 190 Ala. 36, 66 So. 655.

The limit to the right of amendment is, there must not be an entire change of the cause of action nor an entire change of parties. Birmingham Gas Co. v. Sanford et ux., 226 Ala. 129, 145 So. 485.

The amendment adding...