Doucet v. Middleton

• Citation: 328 F.2d 97
• Decision Date: 07 February 1964
• Docket Number: No. 20143.,20143.
• Parties: Dewey DOUCET et al., Appellants, v. Stanley H. MIDDLETON, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

328 F.2d 97 (1964)

Dewey DOUCET et al., Appellants, v. Stanley H. MIDDLETON, Appellee.

No. 20143.

United States Court of Appeals Fifth Circuit.

February 7, 1964.

Kilborn, Darby & Kilborn, Mobile, Ala., Benjamin H. Kilborn, Mobile, Ala., of counsel, for appellants.

Alex T. Howard, Jr., Mobile, Ala., McCorvey, Turner, Johnstone, Adams & May, Mobile, Ala., of counsel, for appellee.

Before RIVES, WISDOM and GEWIN, Circuit Judges.

RIVES, Circuit Judge.

In Alabama must an action for willful or wanton injury to the person, or to personal property, be brought within one year,¹ or within six years?²

Four complaints based on diversity jurisdiction, all arising out of an automobile collision, were filed against the defendant, Stanley H. Middleton. One of the plaintiffs was Dewey Doucet, the owner and driver of the other automobile who sought to recover both for injuries to his person and for damages to his automobile. The other three plaintiffs were passengers in Doucet's car, who sued for personal injuries. The collision occurred on a highway in Baldwin County, Alabama, on July 29, 1960, and the complaints were filed on February 14, 1962, well within six years but more than one year after the collision.

Each complaint was in two counts, the first charging simple negligence, and the second a willful or wanton injury.³

The plaintiffs concede that the first or simple negligence count of each complaint is barred by the one year statute of limitations (n. 1, supra). The district court held that the second or willful or wanton count was also barred by the one year statute of limitations.⁴

There is, and can be, no contention but that under Alabama law a complaint alleging that a defendant willfully or wantonly injured a plaintiff's person or property is in trespass rather than trespass on the case.⁵ For many years it was impossible to join the master and servant as defendants in an action seeking to recover for a willful or wanton injury committed by the servant, because the count would be trespass against the servant and trespass on the case against the master.⁶ To permit the master and servant to be joined in such actions, the Alabama Legislature in 1947 enacted what now appears as section 138(1) of Title 7 of the Code of Alabama.⁷ In Louisville & Nashville Railroad Co. v. Johns, 1958, 267 Ala. 261, 101 So.2d 265, 74 A.L.R.2d 499, the Supreme Court of Alabama held that statute invalid, and quoted at length from a previously unpublished opinion⁸ in part as follows:

"`"With respect to the act in question, briefly speaking, it authorizes the joinder in the same count, a cause of action in trespass against one defendant and one in case against another defendant jointly sued. To permit that would result in many incongruities and would upset principles which are controlling in the orderly procedure of court, as we will undertake to show.

"`"Trespass and case are not defined by statute. Their elements are of common law origin. Trespass is one of the ancient writs. Case arose to meet a situation not covered by any of those writs. Trespass is of three aspects: (1) vi et armis (personal injuries by force directly applied); (2) de bonis asportatis (the carrying away of the goods of another); (3) quaere clausum fregit (direct injuries to the freehold).

"`"They all carry the necessary element of an intentional (or wanton, its equivalent in law), direct application of force by the defendant or under his authority. Unless there is such direct force, there can be no trespass in any aspect.

"`"Case is when injury occurs to the person or property of another when as to the defendant so charged there is no intentional direct application of force, but either a negligent unintentional application, or when the act was intentionally committed by one who is guilty of a trespass, but the defendant is legally responsible for such willful act of the other on such principle as respondeat superior. In that event the one is guilty of a trespass and for such trespass the other is responsible in case, because he did not commit a trespass and there was no writ which provided a remedy.

"`"The effect of this act of the legislature is to provide that when these two respective claims exist they may be united in a suit and in the same count against the one who committed the trespass and the one who is consequentially responsible, both jointly sued. The act further provides that if the count alleges the commission of a trespass it may be established by proof of a claim in case. Incongruous situations would thereby result:

"`"One committed a trespass, the other did no wrong. There can be no separate judgments against defendants in different amounts. The judgment against them must be a certain sum against them jointly. Yet one may have done a vicious and intentional act, and the other was not a party to it, though legally responsible. City of Tuscaloosa v. Fair, 232 Ala. 129, 167 So. 276. In any event the claim against them each separately is on a different theory of liability and is not joint, though they are jointly sued. It is incongruous for a count to mean one thing against one defendant and another against the other defendant, jointly sued. They will not mix. The law cannot make oil and water mix.

"`"Moreover, there is a different statute of limitations applicable to the same count as to a trespass charge and to a case charge. One is six years, the other one year. A count cannot be susceptible to different periods of limitations as to different defendants jointly sued.

"`"We doubt not that the legislature may do away with one or the other form of action and make a form of action suffice regardless of whether the ancient distinction is carried forward. But in doing so, it should state whether the new action shall be called trespass or case, affix a limitation to it, and do away with the common law distinctions and requirements as to each separately and make provisions about contributory negligence. But this act recognizes the continued existence of both with their respective inherent qualities and distinctions and tries to unite them in one suit in which they cannot unite. There must be but one form of action in a single count, and it must be clear what that form is and what are its qualities, limitations and elements."\'" (Emphasis supplied.)

101 So.2d at pp. 280, 281.

To meet the unpublished opinions in Sibley v. Odum and in the Birmingham Transit Company case, supra n. 8, the Alabama Legislature had in 1957 enacted what is now section 176 of Title 7 of the Code of Alabama.⁹ Thus, the Alabama Legislature found it necessary "to create a form of action known as the statutory suit against principal and agent or master and servant, etc.," and to prescribe the limitations applicable to such an action. Further, the Act provided that, "In all such cases, but in no other, the ancient distinctions between trespass vi et armis and trespass on the case are abolished." (Emphasis supplied.)

The Supreme Court of Alabama in the Johns case, supra, and the Legislature of Alabama in enacting what is now section 176 of Title 7 of the Code of Alabama clearly recognized that an action against a defendant for a willful or wanton injury committed by the defendant himself was in trespass and was covered by the six year statute of limitations, now section 21 of Title 7 of the Alabama Code, the pertinent part of which is quoted in footnote 2, supra.

The defendant, appellee, argues that the six year statute of limitations in Alabama is not applicable to all actions for trespass to the person, but only to such actions as are intentional. He bases that argument on the last clause in the description of the actions in section 21, footnote 2, supra:

"Actions for any trespass to person or liberty, such as false imprisonment, or assault and battery." (Emphasis supplied.)

The defendant concedes, as he must, that the Supreme Court of Alabama found no such distinction in the Johns case, supra, and argues flatly that,

"The Supreme Court of Alabama mistakenly assumed that the statute of limitations of six years applied to all actions for trespass. The author of this dictum apparently neglected to check the six year statute to determine whether such statute was applicable to all actions for trespass to the person. This is understandable, as the question in our instant cases was not before the Supreme Court of Alabama in the Johns case and we submit that our instant question has never been decided by that Court.

"* * *

"I submit that the author of the opinion in the Johns case, supra, was wholly unaware of the wording of Title 7, section 21, supra, when such opinion was written."

We cannot accept that argument, especially in the light of the legislative recognition of that part of the Sibley v. Odum and Birmingham Transit Company opinion adopted by the Johns decision.

Further, the reference to the statute of limitations in Johns was not mere obiter dictum, as defendant claims, but was an important part of the ratio decidendi of the case. However, even if the defendant was correct in referring to that part of the Johns opinion as dictum, it is nonetheless binding on this Court under the Erie¹⁰ doctrine.

"The obligation to accept local law extends not merely to definitive decisions, but to considered dicta as well, and if explicit pronouncements are wanting, the federal court should endeavor to discover the law of the state on the point at issue by considering related decisions, analogies, and any reliable data tending convincingly to show what the state rule is."

1A Moore's Federal Practice, p. 3312. Even in the era of Swift v. Tyson, 1842, 16 Pet. 1, 10 L.Ed. 865, federal courts were bound to follow state court decisions on construction of state statutes.¹¹ Speaking of such a statutory construction, the Supreme Court, through Mr. Justice Cardozo, said:

"* * * At least it is a considered dictum, and not comment merely obiter. It has capacity, though it be less than a

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