Alabama Steele & Wire Co. v. Clements , 146 Ala. 259 ( 1906 )

DENSON, J.

The complaint as originally framed Avas composed of six counts. The minute entry shows the trial of the case Avas begun on the 27th day of January, 1904, and continued until the 30th day of January, on Avhich latter date the jury rendered a verdict for the plaintiff. It appeal's on the 27th of January the plaintiff amended the complaint by striking out the third, fourth, fifth, and sixth counts, and by adding three counts, designated as B, O, and I), respectively. There appears in. the record an instrument which purports to be an amendment of tlie complaint. Tlie caption of the instrument is as follows: “In order to simplify this case, plaintiff hereby withdraws all his counts in the case except the following: I), B, and C — hereby amending his complaint by striking out all others, upon which counts he submits his case to the jury in words and figures as follows, viz.: (Then follows counts I),- B, and C.) The minute entry takes no notice of the amendment, but at the end of the amendment, on the page of the record where it appears, is this indorsement: “Filed in office this the 29th of January, 1904. Walter McAdory, Clerk.”

It is now insisted by the. appellant, that the amendment cannot be regarded, for that it does not appear that the amendment was made Avith leave-of the court. We think the insistence untenable. While it is the proper practice that the minute entry proper should show that amendments are alloAved, yet, if the amendment is sIioaati by the record, it cannot be insisted for the first time on appeal that they are not properly in the record, especially in the face of the certificate of the clerk, attached to the record containing the amendment, to the effect that the record contains “a true and correct copy of the records and proceedings in the cause.” — Sou. Ry. Co. v. Bunt, 131 Ala. 591, 32 South. 507. Therefore the only counts in the complaint for consideration are B, C, and D. Demurrers to each of these counts were overruled. Count C is framed with respect of subdivision 3 of section 1749 of the code of 1896. To make a good count under this subdivision it is necessary that the name of the employe whose negligence, is counted on should be averred, or his name should he averred to he unknoAAm to the plaintiff when that is a fact. In this respect count 0 is defective. The demurrer pointed out the defect, and it should have been sustained. — Armstrong v. Montgomery St. Ry. Co., 123 Ala. 233, 26 South. 349; Woodward Iron Co. v. Herndon, 114 Ala. 191, 21 South. 430; Cen. of Ga. Ry. v. Lamb, 124 Ala. 172, on page 175, 26 South. 969, on page 974. Another defect in count C, pointed out by the demurrer, consists in its failure to aver that the order was negligently given. — Dantzler v. DeBardeleben, 101 Ala. 309 on page 313, 14 South. 10, on page 12, 22 L. R. A. 361; Bear Creek Mill Co. v. Parker, 134 Ala. 293, 32 South. 700. Count D is so patently defective that it seems only necessary to refer to the grounds stated in the demurrer interposed to it. — Logan v. Central Iron Co., 139 Ala. 548, 36 South. 729; K. C. M. & B. R. R. Co. v. .Burton, 97 Ala. 240, 12 South. 88. The principle is well settled that if an occupier of premises, either directly or by implication, induces another to come upon them, he thereby assumes an obligation that such premises are in a reasonably safe condition, so that the person there by his invitation shall not be injured by them, or in their use for the purpose for which the invitation was extended.— Campbell v. Lunsford, 83 Ala. 512, 3 South. 522; Railway Co. v. Thompson, 77 Ala. 457, 54 Am. Rep. 72; O’Brien v. Tatum, 84 Ala. 186, 4 South. 158; Sloss v. Knowles, 129 Ala. 410, 30 South. 584; Lake Shore Ry. Co. v. Rodemer, (Illl.) 29 N. E. 692, 32 Am. St. Rep. 218; Davis v. Central Congregation Society, 129 Mass. 367, 37 Am. Rep. 368; Sweeny v. Old Colony, 87 Am. Dec. 644; Donaldson v. Wilson (Mich.) 26 N. W. 842, 1 Am. St. Rep. 487.

We have found there was error in overruling lire demurrers to counts C and D. If the bill of exceptions were stricken, as appellee asks us to do, this would leave before us the pleadings alone, and the error in overruling the demurrer to counts C and D would work a reversal of the judgment. If the bill of exceptions is before us and is properly a part of the record, we could not affirm therefrom that.the verdict was based on count B. On the contrary, under the evidence, it can only be referred to counts O and D. It may he that count B is insufficient in not directly alleging, and in leaving only an inference, that the defendant was in. possession or had under its control Yirginia Mine, or the tipple at said mine. As the case must be tried again, and count B may be easily amended so as to remove the question as to its sufficiency vel non, now presented, we do not consider it necessary to now. make a definite decision as to the sufficiency of that count. Further, in view of the fact that two of the counts upon which the trial was had are held insufficient, and the complaint will have to be amended and the issues reformed, we do not think it would be of any benefit to the parties to the cause or to the court below on a new trial for this court to pass upon rulings of the court with respect of the pleas of the defendant. Necessarily on an amendment of the complaint the pleas will be reframed and adjusted to the complaint as amended. For like considerations we will not consider the motion to strike the bill of exceptions or matters reserved by it.

For the errors pointed out, the judgment is reversed, and the cause remanded.

Reversed and remanded.

'Weakley, C. J., and Haralson and Dowdell, JJ., concur.