C. O. Osborn Contracting Co. v. Alabama Gas Corp.

• Decision Date: 23 March 1961
• Docket Number: 6 Div. 444
• Parties: C. O. OSBORN CONTRACTING COMPANY v. ALABAMA GAS CORPORATION.
• Court: Alabama Supreme Court

Page 166

135 So.2d 166

273 Ala. 6

C. O. OSBORN CONTRACTING COMPANY v. ALABAMA GAS CORPORATION.

6 Div. 444.

Supreme Court of Alabama.

March 23, 1961.

Rehearing Denied June 22, 1961.

S. P. Keith, Jr., Birmingham, for petitioner.

Hobart A. McWhorter, Jr., White, Bradley, Arant, All & Rose, Birmingham, opposed.

COLEMAN, Justice.

Plaintiff sued to recover for damage to its gas main allegedly caused under such circumstances as to render the defendant liable. On a stipulation of facts, judgment was rendered for the plaintiff. Defendant appealed to the Court of Appeals where the judgment for plaintiff was affirmed. Defendant has applied for certiorari to review the judgment of the Court of Appeals.

The record appears to indicate that the defendant is a natural person sued in both his individual capacity and the name under which he was doing business. At various places in the stipulation of facts the plural is used, but we have considered the defendant as being only one person and as being a natural person, not a corporation.

The stipulation of facts, in pertinent part, recites as follows:

"Defendants had a contract with the City of Birmingham, Alabama to build a storm sewer under fifth avenue South between 35th and 36th Streets in the City of Birmingham (Jefferson County) Alabama. The plaintiff has an 8 inch cast iron gas main lying in its right of way under said avenue and street. Defendants in excavating for said storm sewer piled dirt taken from said excavation onto the level above said gas main. Certain amount of dirt was excavated by defendants from under the area where the gas main was located--The plaintiffs assistant general foreman requested defendants to remove dirt from the area called the overhang after defendants had excavated dirt from under the pipe line in order to prevent cave-in.

"The defendants were using a drag line with bucket which weigh a ton and a half to 2 tons, which came into contact with said main and crushed the top half proximately causing damages in the amount of Three Hundred, Twenty-Seven Dollars ($327.00).

"The above incident happened on Janaury 7, 1955, and suit was filed on January 11, 1956.

* * *

* * *

"An employee of defendants was operating the drag line on January 7 1955, at the time and place complained of. He was acting in line and scope of his employment.

"Defendant had been working on said storm sewer for approximately one month at the time of said damage and plaintiff's assistant foreman was checking said main on behalf of plaintiff."

The cause of action arose January 7, 1955. More than one year later, on January 11, 1956, the action was commenced. Defendant has pleaded the statute of limitations of one year. Code 1940, Tit. 7, § 26.

The plaintiff appears to recognize that its claim is barred by the one-year statute if the allegation and proof show trespass on the case as distinguished from trespass. In brief, 'Plaintiff reiterates that the stiplation of facts affords conclusive proof of a trespass by defendants.'

In order to avoid the bar of the statute plaintiff must allege and prove trespass. It is conceded by both parties that the complaint alleges trespass. The question is: Did the proof show trespass?

The distinction between the action of trespass and the action of trespass on the case, with respect to the liability of a master for the act of his servant, has been stated by this court as follows:

'Without question one may commit a trespass through another as his active agent or joint participant, although the one may not be present at the time, taking any personal hand in the trespass. He must be directing, aiding, participating in, or must ratify the trespass. Such is the charge here, as distinguiched from that of a servant engaged in a lawful employment for his master, but while acting within the scope of his employment, in the conduct of his master's business, wrongfully trespasses upon the property of another, rendering the master liable for consequential damages under the doctrine of respondeat superior. In the one case the...