94 So. 835 | Ala. Ct. App. | 1922
Appellant first assigns as error the action of the trial court in permitting plaintiff, over the proper motion of defendant, to amend the summons by striking out after the name "Birmingham Iron Development Company" the words "a partnership composed of M.R. McNeill G.R. McNeill, M.R. McNeill, and G.R. McNeill," and adding in lieu thereof "a corporation"; the insiscence here being made that the action of the court permitted an entire change of parties defendant. This proposition is decided adversely to appellant's contention. Lewis Lumber Co. v. Camody,
Admitting that count A as amended is subject to some of the grounds of demurrer filed, which, not being necessary, we do not decide, the direct issue presented to the jury under appropriate instructions was the breach of the contract of lease, to furnish to plaintiff during the term steam heat sufficient for the comfort and well-being of plaintiff and her family, and the result of the trial was not affected by the rulings of the court on demurrer. Whatever may have been the rule before, since the case of Best Park Amusement Co. v. Rollins,
"If a complaint, not so fatally defective that a judgment based thereon would be arrested on motion, or a plea in a civil cause be defective for the reason that a necessary allegation is omitted, and a demurrer pointing out this defect has been improperly overruled, the judgment following will not be reversed on this account if the entire record discloses that the trial court by an appropriate charge instructed the jury specifically as to the necessity of proving the omitted allegation, and the record further shows that this omitted allegation was proved and considered." Jackson v. Vaughn,
In the instant case the court, in his oral charge, clearly stated and defined the issues between the parties as a result of the alleged breach of the contract, and evidence was admitted tending to prove the contentions both of the plaintiff and defendant, thereby presenting the whole case to the jury, despite the overruled demurrer. In the later case of Ex parte First National Bank of Montgomery,
The court, in its general charge, in defining the issues between the parties, instructed the jury that, if the plaintiff was entitled to recover at all, it was only for physical injury to herself and her immediate family, growing out of a breach of the contract. No special damages having been otherwise pleaded and proved, this was a correct statement of the law. Hart v. Coleman,
The rulings of the court on the admissibility of evidence were without prejudicial error. By its rulings at the time of admission and by the court's oral charge, the testimony was expressly limited within the issues involved in the case.
The oral charge of the court, together with the written charges given at the request of defendant, cover every phase of the law of this case, and therefore the charges refused to defendant were either properly refused or were amply covered by the other given charges.
The excerpt from the argument of plaintiff counsel to which exception was reserved was within the bounds of legitimate argument. *7
The damages awarded were compensatory, and under the facts we cannot say they were excessive.
We find no error in the record, and the judgement is affirmed.
Affirmed.
