Mobile & Ohio Railroad v. Logan

MclOLELLAN, O. J. Our very liberal statute of amendments has always been very liberally construed. [176] Pertinent to the question now before us, it hás been held that the complaint of A B may be amended so as to stand as the complaint of A B as the administrator of O I), and vice versa or, in other words, that a complaint may always be amended in respect of the capacity in which the plaintiff sues. — Longmire v. Pilkington, 37 Ala. 296; Crimm v. Crawford, 29 Ala. 623; Lucas v. Pitman, 94 Ala. 616. The theory upon which this ruling proceeds is that the amendment works no change of the sole plaintiff, A B in the case supposed, but that he is the plaintiff after amendment as he was before, though before he sued individually and after he sues in a representative capacity. Nor can an amendment as to the capacity in which the plaintiff sues be said to be a departure when the recovery sought in the original and amended complaint is the same, and the right of recovery is based upon the same transaction. Here the complaint as originally filed proceeded in the name of W. H. Logan as administrator of Casper Rosanalger, deceased, and claimed damages for the death of the intestate. It was developed on the trial that the dead man’s name was Gasper Rosenllanger, that Logan had been appointed administrator of Gasper' Rosenllanger, and that the cause of a.ction for which the suit was brought and which was being tried was the alleged wrong of the defendant resulting in the death of Rosenllanger. Logan had not been appointed administrator of Casper Rosanalger, and it does not appear that there was or ever had been a man of that name. The complaint, therefore, was bad for misnaming plaintiff’s intestate; and to correct this misnomer was neither the substitution of a sole new party, nor a departure from the case presented in the original complaint. The circuit court was in error in refusing to allow the amendment to be made, and in excluding all the evidence on the ground of variance and directing a verdict for defendant; and it did right in subsequently rectifying these errors by setting aside the verdict, granting a new trial and allowing the amendment to be made. [177] We, have not been inattentive to the position and argument of counsel for appellant that the defendant was entitled to the affirmative charge aside from the supposed fatal variance between the complaint and the evidence as to the name of the dead man, and that, therefore, the circuit court erred in granting plaintiff; a new trial, notwithstanding the error it had committed on the trial in refusing to allow the proposed amendment; but, assuming without deciding the soundness of the argument, if the position, that there was no evidence tending to' support the complaint, is well taken, we yet cannot concur in the conclusion insisted upon, because we do not find that position to he well taken: We are unable to say that there was no evidence adduced tending to support the complaint, hut. we think there is such evidence. It would serve no good purpose on another trial for us to discuss this matter further. Affirmed.