Crotwell v. Cowan

• Decision Date: 10 October 1940
• Docket Number: 6 Div. 623.
• Citation: 240 Ala. 119,198 So. 126
• Parties: CROTWELL ET AL. v. COWAN ET AL.
• Court: Alabama Supreme Court

198 So. 126

240 Ala. 119

CROTWELL ET AL. v. COWAN ET AL.

6 Div. 623.

Supreme Court of Alabama

October 10, 1940

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action for personal injuries by Marie J. Cowan against Myrtle Crotwell and Daisy Daniel, and by Prude T. Cowan against the same defendants for loss of services and society of his wife and for property damage, growing out of an automobile collision. From judgments for plaintiffs, defendants appeal.

Affirmed.

Ross Ross & Ross, of Bessemer, for appellants.

Edw. H Saunders, of Bessemer, and G. P. Benton, of Fairfield, for appellees.

BROWN Justice.

This is the second appeal by the defendants from judgments entered on the verdicts for plaintiffs. The former appeal is reported as Crotwell et al. v. Cowan et al., 236 Ala. 578, 184 So. 195.

On the trial following the remandment, the complaints were amended by adding Count A and withdrawing all other counts. Count A ascribes the plaintiff's injury and damages consequent upon the collision of the two automobiles, to the negligence of the defendant Crotwell in the operation of the Daniel's automobile, as the agent of the defendant Daniel acting within the scope of said agency. One of the contentions of the appellants is that said Count A is in trespass as to Crotwell and case as to Daniel, and offends the rule that trespass and case can not be joined in the same count. Counts in case and trespass may be joined in the same action when they relate to the same occurrence or acts, and to all of the defendants, but it is not permissible to join case and trespass in the same count. Louisville &amp Nashville R. Co. v. Abernathy, 197 Ala. 512, 73 So. 103.

Under the common law, the foundation for civil liability for injuries to persons and property consequent upon the unintentional application of force, whether the act be affirmative or omissive, is negligence, and the appropriate common law action is case, speaking more correctly, trespass on the case. But when force is intentionally applied by direct affirmative act it is trespass and the appropriate action for the recovery of damages therefore is trespass. Pruitt v. Ellington, 59 Ala. 454; City Delivery Co. v. Henry, 139 Ala. 161, 34 So. 389; Aldrich v. Tyler Grocery Co. et al., 206 Ala. 138, 89 So. 289, 17 A.L.R. 617; 20 R.C.L. p. 6, § 1; Central of Georgia Railway Co. v. Freeman, 140 Ala. 581, 37 So. 387; Lookout Mountain Iron Co. v. Lea, 144 Ala. 169, 39 So. 1017; Birmingham Railway Light & Power Co. v. Wright, 153 Ala. 99, 44 So. 1037.

The statement in Hawkins v. Barber, 231 Ala. 53, 54, 163 So. 608, characterizing the action as trespass against Edwards, was clearly an inadvertence and inconsistent with the ruling therein recorded.

In City Delivery Co. v. Henry, supra [139 Ala. 161, 34 So. 390], it was observed "The first and third counts of the complaint aver that 'the defendant, by and through its agent or servant, John McClary, negligently caused an ice wagon which was drawn by mules or horses to run against and strike plaintiff with great force, thereby throwing her to the ground and inflicting upon her serious injuries,' etc. It is insisted for appellant that these counts are in trespass, and not case....