Collum v. Argo

• Citation: 599 So.2d 1210
• Parties: Kenny COLLUM, Collum Motors and Mobile Homes, Kenny Collum d/b/a Collum Motors v. Frank L. ARGO and Madgie L. Argo. 2910124.
• Decision Date: 01 May 1992
• Court: Alabama Court of Civil Appeals

Page 1210

599 So.2d 1210

Kenny COLLUM, Collum Motors and Mobile Homes, Kenny Collum d/b/a Collum Motors v. Frank L. ARGO and Madgie L. Argo.

2910124.

Court of Civil Appeals of Alabama.

May 1, 1992.

Bill Speaks, Clanton, for appellants.

Erskine R. Funderburg of Church, Trussell & Funderburg, P.C., Pell City, for appellees.

PER CURIAM.

This is a trespass case.

In December 1989 Frank and Madgie Argo filed suit against Kenny Collum, Collum Motors and Mobile Homes (CMMH), and Stanley Wilson for trespass, intentional trespass, and statutory relief under §§ 35-14-1, -2, Code 1975. The action was originally filed in district court, but was later transferred to the circuit court after the Argos amended the complaint to seek damages in excess of $5,000, the district court's jurisdictional limit.

After an ore tenus proceeding was held on the complaint, the court entered judgment "in favor of the plaintiffs and against the defendants," and awarded damages of $7,500. Collum and CMMH filed a motion for new trial, which was denied, and this appeal ensued. Wilson did not join in the postjudgment motion and is not a party to this appeal.

We begin our review by noting the following pertinent facts: In August 1989 Kenny Collum sold a mobile home to William and Teresa Dawson. Financing for the purchase was arranged through CMMH and included an amount necessary for the installation of a septic tank and field lines for the Dawsons' mobile home. The Dawsons were unable to find a contractor for the installation and asked Collum to locate someone for them. He subsequently contacted Stanley Wilson, who agreed to perform the septic tank work.

The Dawsons' mobile home lot was adjoined by the Argos' property. In the course of installing the tank and field lines for the Dawsons, Wilson and his crew of workers crossed over onto the Argos' property and pushed over twelve to twenty trees belonging to the Argos. Mr. Argo immediately informed Wilson of the trespass. The Argos subsequently attempted to obtain reimbursal from Wilson for the damage to their property and ultimately filed suit.

The Argos' complaint is based in part on §§ 35-14-1, -2, Code 1975. These statutes provide a cause of action against any person who willfully and knowingly cuts down, deadens, boxes, takes away, or otherwise destroys ornamental and fruit trees upon land that does not belong to him, without the consent of the owner. The statutes require specific amounts to be paid to the owner for each tree that is affected by the trespasser's action, according to the type of plant. The terms "willfully" and "knowingly" as used in the statutes denote an intention to produce the result which actually comes to pass; mere negligence is not sufficient to incur liability. Vick v. Tisdale, 56 Ala.App. 565, 324 So.2d 279 (Ala.Civ.App.1975). An employer may be liable under this statute if it is shown that he, by his command and authority, caused his employee to commit the forbidden act. Ruple v. Jones, 270 Ala. 282, 117 So.2d 389 (1960).

The Argos' complaint is also based on both the theory of general trespass and the theory of "trespass on the case." An employer's liability for general trespass is based on the doctrine of respondeat superior; that is, an employer may be liable for consequential damages when his employee, acting within the course of the employer's business, wrongfully trespasses on the property of another. C.O. Osborn Contracting Co. v. Alabama Gas Corp., 273 Ala. 6, 135 So.2d 166 (Ala.1961). The employer need not have even been aware of the employee's actions, because liability arises from the employment relationship itself. In contrast, to incur liability under an action of "trespass on the...