Opinion
6 Div. 520.
April 10, 1934.
Appeal from Circuit Court, Jefferson County; Richard V. Evans, Judge.
Action on a policy of insurance by Viola Epps against Charles W. Peters and others. Judgment for defendants, and plaintiff appeals.
Affirmed.
Harrison Kendrick, of Birmingham, for appellant.
Amendment of a complaint must be allowed by striking out or adding new parties, or by striking out or adding new counts or statements of the cause of action which could have been included in the original complaint, and such counts or statements will not be held to relate to new or other causes of action so long as they refer to the same transaction, property, title, and parties as the original; and, where this is not apparent on the averments of the pleading, it shall be a question of fact for the jury. Code 1923, § 9513; Birmingham B. R. Co. v. Ellenburg, 215 Ala. 395, 111 So. 219; Rudolph v. Holmes, 201 Ala. 461, 78 So. 839; Springfield F. M. Ins. Co. v. De Jarnett, 111 Ala. 248, 19 So. 995; Daniels v. Milstead, 221 Ala. 353, 128 So. 447; Southern R. Co. v. W. T. Adams Mach. Co., 165 Ala. 436, 51 So. 779; Standard A. Ins. Co. v. Hoehn, 215 Ala. 109, 110 So. 7; Owensboro Wagon Co. v. Hall, 149 Ala. 210, 43 So. 71; Gambill v. Fox T. Co., 190 Ala. 36, 66 So. 655; Oden v. Bonner, 93 Ala. 393, 9 So. 409.
Harsh, Harsh Hare, of Birmingham, for appellees.
Where several assignments of error are argued jointly, if any single assignment is not well taken, reversible error will not be predicated upon any assignment so grouped. Ogburn-Griffin Grocery Co. v. Orient Ins. Co., 188 Ala. 218, 66 So. 434; North Ala. Tr. Co. v. Taylor, 3 Ala. App. 456, 57 So. 146; Morton v. Clark, 10 Ala. App. 439, 65 So. 408; Barfield v. Bartlett, 23 Ala. App. 9, 119 So. 696; Hamilton v. Cofield, 220 Ala. 44, 124 So. 91; City of Montgomery v. Moon, 208 Ala. 472, 94 So. 337; Alabama S. W. Co. v. Griffin, 149 Ala. 423, 42 So. 1034; Beason v. Sovereign Camp, W. O. W., 208 Ala. 276, 94 So. 123. Where an amendment works an entire change of parties or causes of action, it is properly stricken. North Italian Col. Co. v. Janovich-Calafiore Co., 166 Ala. 201, 52 So. 339; Moore v. First Nat. Bank, 139 Ala. 595, 36 So. 777; Richardson v. Hopkins, 218 Ala. 280, 118 So. 465; Ivy Coal Coke Co. v. Long, 139 Ala. 535, 36 So. 722; Hanchey v. Brunson, 175 Ala. 236, 56 So. 971, Ann. Cas. 1914C, 804; Ala. Const. Co. v. Watson, 158 Ala. 167, 48 So. 506.
The suit was begun by Viola Epps, plaintiff, against Charles W. Peters and Masonic Endowment Department, Ancient Free and Accepted Masons of Alabama. There was one count of the complaint, in Code form, claiming, etc., on a life insurance policy.
Thereafter, counts A, B, and C were added by way of amendment, seeking recovery against only Endowment Department, Ancient Free and Accepted Masons of Alabama.
Then, later, counts D, E, and F were added, seeking recovery against only Most Worshipful Grand Lodge of Ancient Free and Accepted Masons of Alabama (colored), who had been theretofore, since the institution of the suit, made a party defendant. Chas. W. Peters was, on plaintiff's motion, stricken out as a party defendant.
Motion to strike counts A, B, C, D, E, and F was granted. Assignments of error are based upon the action of the court in striking each of the counts mentioned, separately, and severally; but all of the assignments are grouped and argued together as one assignment, presenting but one question.
In such situation, if any one of the assignments is without merit, the others need not be considered. City of Montgomery v. Moon. 208 Ala. 472, 94 So. 337.
All that needs be said, further, is that counts D, E, and F, certainly each constituted an entire departure from the original complaint or wrought a complete change of parties. They were obviously stricken without error. North Italian Colonial Co. v. Janovich-Calafiore Co. et al., 166 Ala. 201, 52 So. 339; Moore v. First National Bank of Florence, 139 Ala. 595, 36 So. 777.
The judgment is affirmed.
Affirmed.