Birmingham Iron & Development Co. v. Hood
94 So. 835
Ala. Ct. App.
1922
Check Treatment
SAMEORD, J.

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. McNejll,” and adding in liéu 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, 137 Ala. 578, 35 South. 126; Head v. J. M. Robinson, Norton & Co., 191 Ala. 352, 67 South. 976.

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 befol-e, since thfe case of Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 South. 417; Ann. Cas. 1917D, 929, it is now declared generally that:

• “If a complaint', not so fatally defective that judgment based thereon would be arrested on motion, or á 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, tlie 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, 204 Ala. 543, 86 South. 469; Hines, etc., v. Dollar, 205 Ala. 330, 87 South. 825.

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, 206 Ala. 394, 90 South. 340, the Supreme Court seems to have gotten away from the foregoing rule, while reaffirming the opinions in the eases above cited. The writer confesses an inability to see the distinction, unless one rule is to apply to suits against banks, and the other to all other cases. At any rate it seems to us that the instant case is controlled by the cases cited above.

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, 201 Ala. 345, 78 South. 201, L. R. A. 1918E, 213. The measure of damages for the personal injury would of necessity be the same in an action ex contractu as ex delicto. If the question was open','we might find it necessary to enter ip1y> a discussion of the various cases touching the subject, but, as we see it, such discussion is precluded and rendered unnecessary by the decision in Hart v. Coleman, supra.

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 pláintiff counsel to which exception was reserved was • within .the bounds of legitimate argument.

*7 Tlie damages awarded were compensatory, and under the facts we cannot say they were excessive.

We find no error in the record, and the judgment is affirmed.

Affirmed.