Trott v. Birmingham Ry. Light & Power Co. , 144 Ala. 383 ( 1905 )

TYSON, J.

The complaint contains two counts. The first, after amendment, upon conclusion of the testimony, was withdrawn, leaving the second, upon which was a verdict and judgment for defendant. The caption of the complaint shews the action to be by Martha M. Trott, as administratrix of the estate of Joseph Trott, deceased, while the second count predicates the right of recovery upon a duty owing to her as a passenger and a breach of that duty; the allegation being that “defendant carried plaintiff as its passenger from said Birmingham to said Mary Pratt Station on said railway by means of said car, and while said car was at or near said Mary Pratt Station, and plaintiff was the passenger of the defendant, one of defendant’s servants or agents in charge or control of said car, to-wit, defendant’s conductor thereof, assaulted and shot plaintiff with a pistol, and so wounded him that he died.” Manifestly the plaintiff in her representative capacity as the administratrix of Joseph Trott, deceased, cannot recover for any injuries suffered by her personally, and, therefore, no cause of action is stated. And, if she was killed by the shot, she certainly cannot maintain an action. But, if the-words “so wounded him that he died” be referred to Joseph Trott, deceased, no duty or breach thereof is alleged as to him. No relation

is averred to exist between him and the company, and no cansal connection shown between his death and the conduct of the defendant for which it can be held liable. So, then, as to- him, the count is wholly and utterly defective in failing to show a duty and a breach thereof, and therefore states no cause of action in favor of Martha M. Trott as his administratrix.

But it is urged that the count should be read as though the word “intestate” appeared after the word plaintiff wherever it appears in the count. This would be clearly an amendment of it which' this count is not authorized to make, and this-, too, for the purpose- of making it state a cause of action. This insistence proceeds upon two theories. The first is that it appears from the record that the omission of the apostrophe and the letter “s” after the word plaintiff and the word “intestate” is a clerical error, which this court will correct. A clerical error is one made by a clerk in transcribing, or otherwise, and, of course, must be apparent on the face of the record, and capable of being corrected bjr reference to the record only. Confessedly the record here to be looked to is the count under consideration and the caption thereto. How can it be affirmed that the words which we are urged to insert in the count were omitted by mistake? The mere use of the words “him” and “he,” denoting the masculine gender of the plaintiff in connection with the caption, is certainly not sufficient to authorize the correction, when taken in connection with the other positive averments that it was the plaintiff who was a passenger, and that it urns the plaintiff who was shot. These-several averments are so contradictory and irreconciliable that it is impossible to say that 'they were the result of a clerical error, and therefore subject to be corrected’by this court. No case has been cited to support the contention, and after diligent search we have been unable to find one. To assume that it was the intention of the pleader to insert the necessary words to make a good cause of action would not only be dangerous, but á perversion of the rules of pleading, and might work great- injuctice to a defendant. It would sanction a laxity in pleading that should not obtain.

The next 'theory is that, the defendant having been tried upon the complaint and treated it as stating a cause of action, it should not be permitted to insist upon the point here. It is of no consequence what attitude the defendant may have assumed in the court below, or, for that matter, here, with respect to this count, since the court was without jurisdiction to render a judgment upon it. It will not, in other words, support a judgment. Bryant v. Sou. Ry. Co., 137 Ala. 488, 492, 34 South. 562.

Entertaining' these views, it is wholly unnecessary to consider the assignments of error; and the judgment must be affirmed.

Affirmed.

Haralson, Simpson, and Denson, JJ., concur.