Nashville, C. & St. L. Ry v. Hill , 146 Ala. 240 ( 1906 )

WEAKLEY, C. J.

The complaint originally contained seven counts, and count 8 was added by amendment. Each count claimed $1,990, a sum below the minimum jurisdiction of the Circuit Court of the United States. This sum is claimed in each count as damages resulting to the plaintiff, Francis ITill, the mother of the decedent, her minor son, from a Avrongful act of the defendant causing his death. As the damnifying act alleged in each count was the Avrongful killing of the decedent, and as we feel safe in asserting that he could not have been killed but once, it is obviously not “legally possible” for the plaintiff to recover for more than one injury. While it is true that theoretically each count of a complaint is considered and treated as the statement of a different cause of action, each as distinct as if it Avere a separate declaration — (Maupay v. Holley, 3 Ala. 103; Robinson v. Drummond, 24 Ala. 174; Bryant v. Southern Ry. Co., 137 Ala. 488, 34 South. 562), yet avo know practically that the device of introducing numerous counts into a complaint is employed for the purpose of averting a variance betAveen the pleadings and proof, Avhen the plaintiff possesses and means to assert but a single right of action. — Williams v. McKissack, 125 Ala. 544, 27 South. 922. It being plain on the face of the record that only the damages resulting to the plaintiff from the death of her son were sought to he or could be recovered, and these damages being fixed by each count of the complaint at a sum not Avithin the jurisdiction of the federal court, it is legally certain that the case was not removable and was properly retained by the state court.— Thompson v. Southern Ry. Co., (C. C.) 116 Fed. 890.

The case was tried on count 8, all the other counts having been withdrawn, and that count was a copy, mutatis mutandis, of a complaint which was held to be good in Marbury Lumber Co. v. Westbrook, 121 Ala. 179, 25 South. 914. The suit was brought within a year from the happening of the accident, but count 8 was not filed until more than a ye^ar thereafter. The defendant pleaded the statute of limitations of one year, upon which issue was joined, and, being appellant here, relies upon the case of Nashville, Chattanooga & St. Louis Ry. v. Parker, 123 Ala. 683, 693, 27 South. 323, as requiring the affirmative charge, which it requested; but since the submission of this cause that case, upon the point here involved, has been expressly overruled by this court, all the judges concurring. — Rasco v. Jefferson (Ala.) 38 South. 247. The plea of the statute of limitations as authorized by the Code is peculiar. It contains merely an averment of a legal conclusion, to wit, that the cause of action “is barred by the statute of limitations of-years.” Code 1896, p. 949, form 32. So that, if it appear under such a form of plea that the cause of action set forth in the complaint is not barred in the number of years stated, then the plea is not proven. If, on the other hand, the. plea should aver, as it might do, that the accident happened more than -- years before the bringing of the suit, or in some cases before the filing of an amendment to the complaint and issue were joined thereon, and the facts alleged were proven, the cause would come within the influence of numerous decisions, which hold that a proven plea will entitle a- defendant to a verdict, although it would on demurrer have been adjudged to set up immaterial or insufficient matter, and hence to present no defense to the action. It was ho doubt the overlooking of the difference between the Code -form for a plea of the statute of limitations, and the form that is usual under common-law pleading that led this court into error in the Parker Case, and which it corrected in Rasco v. Jefferson (Ala.) 38 South. 247. The seventh plea interposed to the eighth count ivas thus expressed: “The defendant also pleads in answer to the said eighth count of the statute of limitations of one year.” It averred no fact, and ivas of no greater value than if it had asserted in the Code form that the cause of action set up in the eighfh count is “barred by the statute of limitations of one year.”

The question then arises, was count 8 barred by the statute of one year, for that it was filed more than a year after the accident, although in a suit instituted within a year? We are of opinion it was not, because under established principles it related back to the time when the suit was begun, and must have effect as of that date. The gravamen of the eighth count is “the alleged wrong of the defendant in putting the plaintiff’s minor son to work at a dangerous place upon a dangerous work without her consent.” — Marbury Lumber Co. v. Westbrook, 121 Ala. 179, 25 South. 914. The count avers that in consequence of such wrong her son was killed, and the plaintiff (thereby) lost his service during his minority, and plaintiff was damaged by reason of said injury. This damage ivas the deprivation of his service and wages until he attained his majority; the father being dead and the son not having been emancipated. Count 1 of the original complaint averred that plaintiff, the mother of the decedent, who brought the suit by reason of the death of the father, claimed a siim of money, for that Wade Hill, a minor, while in the employ of the defendant as a brakeman without the knowledge or consent of plaintiff, his only living parent, was negligently placed on defendant’s cars in the hazardous capacity of brakeman, of the duties of which position he was ignorant; that while thus employed he was killed by being run over by the cars after he had been thrown therefrom by an unusual jerking of the engine; and that by reason of the premises and the wrongful act, omission, and negligence of the defendant the plaintiff was injured. and had sustained damage in the sum claimed. The comparison of count 1 with count 8 shows that the subject-matter of the latter was within the Us pendens of the original suit, and hence said count introduced by amendment is saved from the ban of the statute of limitations by the doctrine of relation back to the commencement of the suit. — Nelson v. First National Bank of Montgomery, 139 Ala. 578, 587, 36 South. 707, 101 Am. St. Rep. 52; Dowling v. Blackman, 70 Ala. 303; L. & N. R. R. Co. v. Woods, 105 Ala. 561, 17 South. 41. Both counts aver the wrongful employment of the plaintiff’s minor son without her knowledge or consent in a dangerous work, and the. accrual of damages to her because of injuries resulting in his death, which he sustained in that work.

The evidence tended to support count 8. That count was not barred by the statute of limitations, and the affirmative charge for the defendant was properly refused. We find no error in the overruling of the motion for a new trial. We cannot say the verdict was excessive.

This disposes of all the assignments of error adversely to appellant, and the judgment is affirmed.

Tyson, Simpson, and Anderson, JJ., concur.