Ex parte Graham

• Decision Date: 30 July 1993
• Citation: 634 So.2d 994
• Parties: Ex parte Michael K. GRAHAM. (In re Michael K. GRAHAM v. BOB MANDAL NISSAN, INC., et al.) 1920483.
• Court: Alabama Supreme Court

Page 994

634 So.2d 994

Ex parte Michael K. GRAHAM (In re Michael K. GRAHAM v. BOB MANDAL NISSAN, INC., et al.)

1920483.

Supreme Court of Alabama.

July 30, 1993.

Andrew T. Citrin, Michael A. Worel and David G. Wirtes, Jr. of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for petitioner.

Michael S. McGlothren and Steve Olen of Olen & McGlothren, P.C., Mobile, for Douglas Johnstone and Bob Mandal Nissan, Inc.

Michael D. Knight of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, and Craig P. Niedenthal of Rumberger, Kirk & Caldwell, Orlando, FL, for Nissan Motor Corp. in U.S.A.

STEAGALL, Justice.

In April 1990, Michael Graham purchased a Nissan Sentra automobile from Bob Mandal Nissan, Inc. (hereinafter "Mandal Nissan"), a dealership located in Mobile County. Several times thereafter, Graham took the vehicle back to Mandal Nissan for repair of an apparent defect that caused the vehicle to "jerk" or swerve to the side when changing lanes.

In September 1990, Graham was riding as a passenger in his automobile on a public roadway in Baldwin County when it suddenly swerved to the right and overturned several times, ejecting Graham and the driver. Graham sued Mandal Nissan and Nissan Corporation, USA (hereinafter "Nissan USA"), alleging that Nissan USA had defectively manufactured the vehicle and that Mandal Nissan had negligently repaired it and that his injuries were the direct result of their negligence. The defendants moved to transfer the action from the Mobile Circuit Court to the Baldwin Circuit Court, and the trial court granted these motions. Graham seeks a writ of mandamus directing the trial court to vacate its transfer order.

Graham first recognizes that the applicable venue statute is Ala.Code 1975, § 6-3-7, which provides:

"[A]ll actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiff's residence."

Graham argues that, for purposes of § 6-3-7, a "personal injury" occurs in the place where the alleged negligent act or omission occurs and not in the place where the damage ensues. He relies upon Ex parte SouthTrust Bank of Tuscaloosa County, N.A., 619 So.2d 1356 (Ala.1993), a fraud case wherein this Court held that in § 6-3-7 "injury" refers to the wrongful act or omission of the corporate defendant and not to the resulting damage to the plaintiff; thus, in SouthTrust we concluded that venue is proper under § 6-3-7 where the wrongful act or omission was committed. Graham argues that this rule should be applied in bodily injury cases, as it is in fraud and libel cases, and concludes that venue in this case is proper in Mobile County where the alleged negligent repair of the vehicle was performed.

Our holding in SouthTrust was based on Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193 (1921), wherein this Court examined at length the issue of where an "injury" is deemed to have "occurred" for purposes of the corporate venue statute. The Court analyzed Ala.Code 1907, § 6112, which was later recodified as § 6-3-7, and held:

"It is clear that the words 'injury'--in the Latin, injuria--in the phrase 'where the injury occurred,' is used in its proper legal sense of wrong, importing, of course, a wrongful act or omission. 'Damage,' the result of the wrongful act--technically called the damnum--is a correlative term of wholly distinct meaning and application. The significance of the terms--'injury' and 'damage'--is sharply contrasted in the familiar legal phrase, damnum absque injuria, and injuria sine damno....''

"The meaning we accord to 'injury' in section 6112 is made clearer by a consideration of 6110, which is a general venue statute, and which authorizes the bringing of non-contractual personal actions either in the county of the defendant's residence, 'or in the county in which the act or omission complained of may have been done, or may have occurred.' Certainly, in enacting the later section (6112), the Legislature did not intend to change the basis of venue in tort actions from the county in which the wrongful act was done or occurred to the county, or any county, in which the resulting damage occurred, and to thereby effect so vital a change in actions only against corporate defendants, and for personal injuries only.

"It results that, under section 6112, the venue in this action must be laid in the county where the wrongful act--that is, the act violative of plaintiff's rights--was done."

207 Ala. at 44, 92 So. at 197.

Because Age-Herald was a libel case, this Court held that the proper venue for the action was the county where the libeling party published the remarks, not where they were received and where the resulting damage occurred. This rule has been applied in later libel cases, Ex parte Arrington, 599 So.2d 24 (Ala.1992); Ex parte First Alabama Bank of Montgomery, N.A., 461 So.2d 1315 (Ala.1984), and has recently been extended by this Court to apply to fraud cases. Ex parte SouthTrust Bank of Tuscaloosa County, N.A., supra. In each of these cases, this Court reiterated that the legal meaning of "injury" in a tort action is the act or omission of the defendant, not the damage that the plaintiff suffers as a result of the defendant's act or omission.

Graham recognizes that in Ex parte Townsend, 589 So.2d 711 (Ala.1991), this Court applied a different interpretation of § 6-3-7 to a "personal injury" action involving a domestic corporate defendant. In that case, the plaintiffs were injured when the garbage truck they were riding in crashed in Etowah County, as the result of a faulty garbage compactor unit sold by the defendant in Jefferson County for installation in the garbage truck. The plaintiffs sued in Jefferson County; however, the court transferred the case to Etowah County on motion of the defendants. This Court denied the plaintiffs' petition for a writ of mandamus directing the trial court to vacate the transfer. The Court noted that the plaintiffs and witnesses to the accident resided in Etowah County, as did the wrecker driver and the medical personnel who attended to the plaintiffs. The Court also noted that the accident was investigated in Etowah County and that the physical evidence in the case, including the vehicle itself, was located in Etowah County. The Court held that the injury thus occurred in Etowah County and venue was proper there.

Mandal Nissan and Nissan USA argue that Townsend created an exception whereby the legal definition of "injury" set out in Age-Herald would not apply in "personal injury" cases where the defendant's act or omission results in bodily harm to the plaintiff. They insist that there is a difference between the damage suffered in bodily injury cases and the damage suffered in the context of fraud or libel, and that there is therefore justification for the exception.

We recognize that in the everyday practice of law, a "personal injury" action is a case wherein the defendant's breach of a duty owed to the plaintiff results in bodily harm to the plaintiff; in that context, "personal injury" is interpreted literally. In interpreting the term "personal injury," as it is used in the venue statute, ...