Eidson v. Johns-Ridout's Chapels, Inc.

• Decision Date: 22 May 1987
• Docket Number: JOHNS-RIDOUT
• Parties: Anna K. EIDSON, et al. v.'S CHAPELS, INC. 85-1269.
• Court: Alabama Supreme Court

Page 697

508 So.2d 697

Anna K. EIDSON, et al. v. JOHNS-RIDOUT'S CHAPELS, INC.

85-1269.

Supreme Court of Alabama.

May 22, 1987.

Stephen D. Heninger of Hare, Wynn, Newell & Newton, Birmingham, for appellants.

Thomas W. Christian and Karon O. Bowdre of Rives & Peterson, Birmingham, for appellee.

MADDOX, Justice.

The sole question in this case is whether the plaintiffs' suit was time barred. To answer that question, we must revisit the distinctions between an action for trespass and an action for trespass on the case, and determine whether plaintiffs' suit against a funeral home, in which they claimed damages for breach of contract, for trespass and for outrageous conduct, was an action for trespass, or whether it was an action for trespass on the case; we must also determine whether, under the facts of this case, the alleged wrong resulted from a breach of promise or from a breach of a duty growing out of the relationship of the parties or imposed by law.

The trial court granted summary judgment in favor of the defendant, and found that the plaintiffs should have filed their action within one year of the date of the occurrence causing the alleged injury and damages. The one-year limitations period applies in this case because of the time when the alleged cause of action arose. ¹

FACTS

Dennis M. Eidson, husband of Anna Eidson, died in 1979 while on a business trip to South Africa. Arrangements were made by his employer, Quartrol Corporation, to have the body shipped by air from South Africa to the Johns-Ridout's Chapel in Birmingham, Alabama; Quartrol also purchased and shipped a casket for Eidson's burial. Deposition testimony shows that employees of Johns-Ridout's picked up Eidson's body at the Birmingham airport and transported it to their mortuary. According to the Eidsons, a Johns-Ridout's representative suggested that the family not try to view the body at the airport, but rather wait until Johns-Ridout's could remove the body from its shipping case and prepare it for viewing. The plaintiffs claim that in a later telephone conversation a Johns-Ridout's representative told them that the casket purchased by Quartrol was not of an American type and that it had been damaged in transit and suggested that they consider purchasing another one. During that conversation, Gregory Eidson, the son of the deceased, and Anna, his widow, told the representative that the family wished to view the body the following morning, Saturday, February 10, 1979, and asked to be notified beforehand if the body would not be ready for viewing at that time. When the Eidson family arrived at Johns-Ridout's the next morning, they claim, they were led to a garage, where the body lay, still in the "sardine can" shipping case, amid garbage cans and people working on automobiles. The Eidsons stated in their depositions that the body was floating in formaldehyde; that there were no shoes on the body; that the body was covered with straw; and that formaldehyde was dripping from the shipping case onto the floor of the garage. The Eidsons stated in their depositions that, while having to view the body of a loved one under such unpleasant conditions, a Johns-Ridout's representative approached the widow to suggest that she consider buying another casket. Ben Staton, president of Quartrol, who had been present at the viewing, stated in his deposition that the Johns-Ridout's representative said, "You mean that you're going to bury a loved one in a casket like that?" After the family indicated that they were not interested in purchasing another casket, the body was satisfactorily prepared and buried by Johns-Ridout's. The Eidsons contend that the Johns-Ridout's employee deliberately showed the body of Dennis Eidson to them in its unprepared condition with the intent of shocking them into purchasing a more expensive casket. Their contract claim, as we understand their argument, is based upon the defendant's breach of its promise to have the body properly prepared for viewing.

According to the complaint, and according to the deposition testimony of the Eidsons, all of the family members who viewed the body in the "sardine can" shipping crate were greatly traumatized at that time and were caused to suffer great mental distress that has continued from that time to the present. It is undisputed that no one in the Eidson family complained to Johns-Ridout's or contacted an attorney until nearly five years later. The Eidsons filed suit on February 21, 1984, against Johns-Ridout's and four fictitious parties, who have never been named, alleging outrageous conduct, trespass, and breach of contract. The trial court granted summary judgment for the defendants on the outrageous conduct and trespass counts on February 14, 1986, and on the contract count on July 22, 1986, on the ground that the statute of limitations had run. Whether the suit was time barred is the only issue raised by the appellants on appeal.

I

We first consider whether, by these alleged facts, plaintiffs have presented a scintilla of evidence to support a claim against the funeral home on a theory of trespass.

Actions for trespass are governed by the six-year statute of limitations in Alabama, while actions for trespass on the case at the time this cause of action accrued were governed by the one-year statute. C.O. Osborn Contracting Co. v. Alabama Gas Corp., 273 Ala. 6, 135 So.2d 166 (1961); Code 1975, § 6-2-34(1). The Eidsons contend that summary judgment was improperly granted on their outrageous conduct and trespass counts because the actions of the Johns-Ridout's representative constituted common law trespass because the injury was "direct" and "immediate." This is a novel argument, but we find no legal support for it. We disagree.

One of the leading decisions in Alabama explaining the distinction between trespass and trespass on the case is Sasser v. Dixon, 290 Ala. 17, 273 So.2d 182 (1973). There, this Court wrote:

"The true distinction between trespass and trespass on the case lies in the directness or immediate character of the injury. An injury is to be regarded as immediate, and therefore a trespass, only where it is directly occasioned by, and is not merely a consequence resulting from, the act complained of. Pan American Petroleum Co. v. Byars, 228 Ala. 372, 153 So. 616 ...; City of Fairhope v. Raddcliffe, 48 Ala.App. 224, 263 So.2d 682; Leonard v. Nat Harrison Associates (Fla.App.), 137 So.2d 18. In Crotwell v. Cowan, 240 Ala. 119, 198 So. 126, this court said:

" '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. (Citations omitted.).' "

290 Ala. at 19-20, 273 So.2d at 183-84.

The Eidsons argue that the tort of outrageous conduct, as that cause of action is defined in American Road Service Co. v. Inmon, 394 So.2d 361 (Ala.1980), requires a showing of the direct application of force, and thus that the action sounds in trespass and is governed by the six-year statute, Code 1975, § 6-2-34(1). In Inmon, this Court defined the elements of outrageous conduct as follows:

"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm."

394 So.2d at 365.

The Eidsons contend that the conduct of the Johns-Ridout's employees was beyond all possible bounds of decency, involving direct and intentional conduct historically characteristic of trespass. In support of their contention, they cite this Court's cases of W.T. Ratliff Co. v. Henley, 405 So.2d 141 (Ala.1981); Born v. Exxon Corp., 388 So.2d 933 (Ala.1980); Borland v. Sanders Lead Co., 369 So.2d 523 (Ala.1979); and Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974). While plaintiffs recognize that these cases all involve damage to property, they contend that the analysis of the "direct force" concept in those cases is similar to the analysis which must be applied in personal injury actions involving alleged intentional infliction of severe emotional distress.

In City of Fairhope v. Raddcliffe, 48 Ala.App. 224, 263 So.2d 682 (1972), Judge Wright, writing for the Court of Civil Appeals, stated:

"It seems to be commonly accepted among the bar that a count alleging a willful or wanton act is always a charge in trespass.

Such is not literally true. To be a trespass there must be an act of direct force producing injury or damage. A wanton omission of duty to act is not a trespass. There is no direct force applied and the injury is not produced by application of force, but is consequential of an omission of a duty to act."

In Raddcliffe, however, the Court of Civil Appeals held as follows:

"There is only one definition of common-law trespass. This is quoted in Louisville & Nashville Railroad Company v. Johns, 267 Ala. 261, 101 So.2d 265, from an unpublished opinion in Sibley v. Odum, 257 Ala. 292, 58 So.2d 896, as follows:

" ' "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...