Denny v. Seaboard Lacquer, Inc.

• Citation: 487 F.2d 485
• Decision Date: 20 November 1973
• Docket Number: No. 72-1832.,72-1832.
• Parties: James W. DENNY, Administrator of the Estate of James N. Denny, by Roger L. Smith, Ancillary Administrator of the Estate of James N. Denny, to his own use and to the use of Insurance Company of North America, Appellant, v. SEABOARD LACQUER, INC., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

487 F.2d 485 (1973)

James W. DENNY, Administrator of the Estate of James N. Denny, by Roger L. Smith, Ancillary Administrator of the Estate of James N. Denny, to his own use and to the use of Insurance Company of North America, Appellant, v. SEABOARD LACQUER, INC., Appellee.

No. 72-1832.

United States Court of Appeals, Fourth Circuit.

Resubmitted September 5, 1973.

Decided November 20, 1973.

Oliver B. Dickins, Jr., Nashville, Tenn. (Abraham L. Adler, Baltimore, Md., and Moe Levine, New York City, on brief), for appellant.

Barrett W. Freedlander, Baltimore, Md. (Robert H. Williams, Jr., Raymond F. Altman and Niles, Barton & Wilmer, Baltimore, Md., on brief), for appellee.

Before WINTER, RUSSELL, and WIDENER, Circuit Judges.

WIDENER, Circuit Judge:

Plaintiff-appellant, James W. Denny, is the administrator of the estate of James N. Denny (hereinafter Denny) who was killed as a result of an explosion which occurred while Denny was using a quantity of floor sealer which was manufactured by defendant-appellee, Seaboard Lacquer, Inc. (hereinafter Seaboard). In the court below, Seaboard moved for summary judgment, which motion was granted as against Denny but not against other plaintiffs with which we are not concerned in this appeal. For the purposes of disposing of the motion, Seaboard conceded the truth of the factual allegations favorable to Denny. Those facts may be summarized as follows: Denny was a floor finisher by vocation. At the time of the accident, he was engaged in applying a quantity of Seaboard floor sealer to a house which was near completion in Mt. Hope, Alabama. The house was being constructed by Jones Lumber Company, a Tennessee Corporation which builds houses in several states, including Alabama. It is not clear whether Denny worked directly for Jones or for one Strange, a subcontractor of Jones, but the important point is that Denny was using the product in the course of his calling and the product was manufactured by Seaboard.

Denny and two other workers, Wood and Cagle, slept in the house the night before the accident. They had the house closed up due to the cold January weather and they used an electric heater in the bedroom in which they slept. Early in the morning, Denny and Wood arose and went into the kitchen. Denny went into the kitchen first, and, when Wood came in, Denny was having coffee. Denny left the kitchen with a quantity of floor sealer and went toward the front bedroom to begin work. As Denny passed the back bedroom, he rapped on the door to awaken Cagle, who was still sleeping. Denny then went into the front bedroom and began work, and Cagle joined Wood in the kitchen.

When Cagle left the back bedroom, he left the door open and the electric heater on. The door to the front bedroom, in which Denny was working, was closed, although Denny probably had a window open. Cagle and Wood were sitting in the kitchen while Denny was working; approximately twenty minutes from the time Cagle woke up and about five minutes from the time Cagle entered the kitchen, he and Wood heard a loud "holler" from Denny. So intense was the heat from the combustion of the floor sealer that Wood and Cagle could not open the door to get out. Wood crashed through a window to escape, and Cagle has no memory as to how he and Denny got out of the house. Wood and Cagle, though severely burned, survived. Denny died two days later.

Of course, it may never be known for certain what occasioned the combustion of the floor sealer. The circumstances certainly point to the open faced, hot coil electric heater in the adjacent bedroom. Denny's administrator, Wood and Cagle sued Seaboard, and the suits were consolidated. Denny alleged causes of action grounded in negligence, strict liability in tort, implied warranty and wanton conduct. Following a hearing on defendant's motion for summary judgment, the trial court granted defendant's motion as against Denny. The district court ruled that Alabama law would govern the substantive aspects of the case. The parties have accepted this ruling on appeal. The district court also necessarily ruled, and Denny conceded, that Alabama courts do not recognize the theory of strict liability in tort, to which Denny originally took no exception here.¹ The court stated that Wood and Cagle had stated good causes of action in negligence but that Denny could not maintain a cause of action under the Alabama wrongful death act for negligence. The court construed the Alabama wrongful death act as requiring gross negligence or wanton disregard of the consequences by the defendant before an action could be maintained. The court further stated, with reference to gross negligence or wanton disregard of the consequences, "it is quite clear that the Plaintiffs cannot prove these facts and the Defendant would be entitled to summary judgment in the Denny case." The trial court also rejected Denny's implied warranty cause of action under the Uniform Commercial Code (Alabama Code, Title 7A, § 2-314) as stated in the complaint. We are thus faced with three issues on this appeal.

I. Whether the trial court correctly ruled that Alabama law does not recognize ordinary negligence as giving rise to an action for wrongful death?

II. Whether a breach of implied warranty will support a wrongful death action under Alabama law?

III. Whether the court erred in ruling on motion for summary judgment that defendant\'s conduct could not, as a matter of law, be deemed wanton or gross negligence?

An added problem is whether plaintiff should not be allowed to proceed on the theory of strict liability in tort in view of Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973).

I

It is familiar learning that, at common law, there was no cause of action for wrongful death. The action died with the person. It is only by virtue of the widespread adoption of wrongful death statutes following Lord Campbell's Act that such actions are maintainable. Alabama's statute is:

"Title 7 § 123:

"Action for wrongful act, omission, or negligence causing death.

"A personal representative may maintain an action, and recover such damages as the jury may assess in a court of competent jurisdiction within the state of Alabama, and not elsewhere for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death. Such action shall not abate by the death of the defendant, but may be revived against his personal representative; and may be maintained, though there has not been prosecution, or conviction, or acquittal of the defendant for the wrongful act, or omission, or negligence; and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions. Such action must be brought within two years from and after the death of the testator or intestate."

On its face, the statute allows a death action to be brought for "the wrongful act, omission, or negligence of any person . . . or corporation. . . ." The language "wrongful act, omission, or negligence" appears three times in the body of the act. And it is plainly stated that as a condition for the administrator's bringing the suit, it must appear that the deceased could have sued for such wrongful act, omission, or negligence had death not occurred. It is clear enough from the statute that, so long as the wrongful act, omission, or negligence is alleged and the deceased could have sued but for his death, the statute recognizes the action. Seaboard contends, however, that the Alabama courts have construed the statute to mean that no action may be brought unless the complaint alleges gross negligence or willful and wanton misconduct. It says that the conduct necessary to come within the purview of the act is the same as that necessary to support an award of punitive damages.

The Alabama wrongful death statute has been in effect since 1872. Seaboard cites no Alabama death cases, and we can find none, which state or hold that negligence will not support a death action. In fact, the Alabama reports are replete with cases illustrating that counts alleging simple or ordinary negligence are sufficient to state a cause of action for wrongful death. E.g., Loveman v. Birmingham Ry., Light & Power Co., 149 Ala. 515, 43 So. 411 (1907); Kansas City, Mobile & Birmingham Ry. Co. v. Sanders, 98 Ala. 293, 13 So. 57 (1892); Richmond & Danville Ry. Co. v. Freeman, 97 Ala. 289, 11 So. 800 (1892); Hubbard v. Thrasher, 26 Ala.App. 252, 157 So. 680 (1934); Brown v. Southeastern Greyhound Lines, 255 Ala. 308, 51 So.2d 524 (1951); Powell v. Atlantic Coast Line Ry. Co., 274 Ala. 533, 150 So.2d 179 (1962). The Supreme Court of Alabama has approved instructions in death cases which charge the jury that defendant may be liable for the failure to use ordinary care. E. g., Brown, supra, instruction No. 28.

While we think it clear that Denny was entitled to have his action proceed on the negligence count, the source of confusion in this case is understandable. The Alabama statute is quite unlike the usual wrongful death act. The life expectancy of decedent at the time of death, his earning capacity, his pain and suffering before death, and the mental anguish of his survivors are all irrelevant considerations under Alabama law. The purpose of the act is not to compensate but to punish. The theory is to prevent homicides by punishing those who cause them. See, generally, Bell v. Riley Bus Lines, 257 Ala. 120, 57 So.2d 612, 615 (1952); Randle v. Birmingham Ry., Light & Power Co., 169 Ala. 314, 53 So. 918 (1910); Richmond & Danville Ry. Co., supra. Thus, the Alabama act is sometimes called a punitive statute and the damages are frequently referred to as...