Corona Coal Co. v. Huckelbey , 204 Ala. 508 ( 1920 )

It is to be noted that the count upon which the cause was tried sought recovery against two named defendants, and used the expression, "the plaintiff claims of the defendants," the latter word being in the plural as noted. Subsequent reference, however, is had to the defendants in the singular, as defendant, and for this reason counsel insist that the complaint failed to show which defendant was operating the mine, or by which defendant the plaintiff was employed, and, further, that the complaint fails to state a cause of action. In 18 Corpus Juris, 460, is found the following, under the headnote "defendant":

"The word may be used as a collective noun and will include all parties defendant."

The case of West Chicago Ry. Co. v. Horne, 197 Ill. 250,64 N.E. 331, is among those cited in the note, and the one here more nearly in point, though the verdict and judgment were there being considered. See, also, Clagget v. Blanchard, 8 Dana (Ky.) 41; Bacon v. Schepflin, 185 Ill. 122, 56 N.E. 1123; Words and Phrases, vol. 2, pp. 1936, 1937; Grove v. Swartz,45 Md. 227.

The foregoing principle was recognized by this court in Grayham v. Roberds, 7 Ala. 719, where the following expression is found:

"The use of the word 'defendants,' instead of the singular, defendant, according to repeated decisions, will be treated as a mere clerical mistake, upon the principle that whenever it is apparent that the plural was unintentionally substituted for the singular, or vice versa, it shall not affect the regularity of the judgment."

See, also, Ashby Brick Co. v. Ely Walker, 151 Ala. 272,44 So. 96.

While the rule requires that the pleading should be construed most strongly against the pleader, yet at the same time it should be given a reasonable construction in the light of common sense and everyday usage. So construing this complaint, I am of opinion that, in the light of the foregoing authorities, the omission of the letter "s" should be treated as a mere clerical error, and the word "defendant" be construed as a collective noun, as including both defendants.

I am inclined to the view that the Carlock Case, cited by the majority, is distinguishable from the instant case, but, in any event, am thoroughly persuaded of the correctness of the view here expressed, and must therefore respectfully dissent.