Townes v. Dallas Mfg. Co.

• Decision Date: 06 July 1907
• Parties: TOWNES v. DALLAS MFG. CO.
• Court: Alabama Supreme Court

45 So. 696

154 Ala. 612

TOWNES v. DALLAS MFG. CO.

Supreme Court of Alabama

July 6, 1907

Rehearing Denied Feb. 6, 1908.

Appeal from Circuit Court, Madison County; D. W. Speake, Judge.

Action by Charles L. Townes against the Dallas Manufacturing Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Dowdell Simpson, and McClellan, JJ., dissenting in part.

R. C Brickell, S. S. Pleasants, and Erle Pettus, for appellant.

R. W Walker, Lawrence Cooper, and George P. Cooper, for appellee.

ANDERSON J.

The only limitation upon the right of the plaintiff in a civil action at law to amend his complaint at any time before the cause is finally submitted to the jury and they have retired is that the form of action must not be changed. There must not be an entire change of parties, nor can there be the substitution or introduction of an entirely new cause of action. Huggins v. Southern Ry. (Ala.) 41 So. 856; Central of Ga. R. R. v. Foshee, 125 Ala. 199, 27 So 1006; 4 Mayfield's Digest, p. 448, § 165. The amendment offered in the case at bar (counts 5, 6, and 7) was within the rule permitting amendments, and the trial court erred in sustaining the defendant's objection to same.

It is urged by counsel for appellee that the action of the trial court was innocuous, as the counts offered by way of amendment were subject to the statute of limitations of one year, in that the cause of action therein set out accrued more than a year previous to the attempted amendment. If such a rule prevailed in case the amendment was barred, which we need not decide, it would not avail the defendant in the present instance, as the amendment offered was within the lis pendens, and related back, so as to cut off the statute of limitations, unless the original complaint was barred. The gravamen of the action is the failure of the defendant to properly light its premises while the plaintiff was at work whether as an employé or under a contractor, and there at the instance of or with the consent of the defendant, and which is the cause of action as set forth in the original as well as the amended complaint. It may be that counts 3 and 4 were attempted under the statute, and that the amendment is framed under the common law; but this was not necessarily such a departure as to prevent its relating back. But, conceding that it was a departure, which we do not hold, counts 1 and 2 can as easily be termed common-law as statutory counts, and, whether good or bad, the injury complained of, as well as the cause, is identical to that set out in the counts offered by way of amendment, and this case falls directly under the influence of the case of L. & N. R. R. Co. v. Woods...