Golden v. McCurry

• Decision Date: 03 October 1980
• Citation: 392 So.2d 815
• Parties: Correll GOLDEN v. Joe Douglas McCURRY, Jr. 79-78.
• Court: Alabama Supreme Court

Page 815

392 So.2d 815

Correll GOLDEN v. Joe Douglas McCURRY, Jr.

79-78.

Supreme Court of Alabama.

Oct. 3, 1980.

Rehearing Denied Jan. 9, 1981.

Francis H. Hare, Sr., Birmingham, and Charles E. Floyd, Phenix City, for appellant.

Ronald G. Davenport of Ferrell & Davenport, Phenix City, for appellee.

Lanny S. Vines, Birmingham, for Alabama Trial Lawyers Association.

Harold F. Herring, Huntsville, and Brittin T. Coleman, Birmingham, for Alabama Defense Lawyers Association.

PER CURIAM.

The significant issue presented by this appeal is whether this Court should abolish the common law rule of contributory negligence and replace it with the rule of comparative negligence.

The basic facts giving rise to the lawsuit are as follows: Plaintiff Correll Golden had ridden home from work in a truck. He alighted from the truck and was crossing Highway 164 to reach his home which was located across the highway. Golden was struck by defendant McCurry's automobile while he was still on the travelled portion of the highway. Golden claimed in his lawsuit that his injuries were proximately caused by McCurry's negligence or wantonness. McCurry claimed that Golden's own negligence contributed to his injuries. Golden asked the court to strike McCurry's contributory negligence defense and adopt the doctrine of comparative negligence. The trial court refused; Golden then stipulated that he was 1% negligent; McCurry stipulated that he would contend throughout the trial that Golden was contributorily negligent and that Golden's negligence proximately contributed to his injuries. Both parties conducted pre-trial discovery.

Claiming that he was entitled to a judgment as a matter of law based upon the pleadings and discovery of record, defendant McCurry filed a motion for summary judgment, which the trial court granted. Golden appeals.

I

As we stated before, the significant issue on this appeal is whether this Court should exercise its inherent power to abrogate the common law defense of contributory negligence and adopt in its place the doctrine of comparative negligence, or whether such a clear departure from presently existing law should be deferred to the judgment of the legislature.

The parties and the Alabama Trial Lawyers Association and the Alabama Defense Lawyers Association, amici curiae, have ably addressed the issues in this case in their briefs and at oral argument. Golden and ATLA contend that: (1) contributory negligence was judicially established; therefore, it can be judicially abolished; (2) the trend of the law is toward an apportionment of fault, and (3) the "pure" form of comparative negligence ¹ should be adopted by this Court, and applied retroactively.

McCurry and ADLA, on the other hand, argue that: (1) Code 1975, § 1-3-1 ² is a statutory codification of the common law defense of contributory negligence; therefore, the legislature, and not the courts, should change the existing law; (2) more states adhere to contributory negligence than to any one form of comparative negligence; and (3) to permit contributory negligence as a defense to a negligence claim is the most equitable because it denies recovery to the party who contributed to his own injuries.

We have carefully studied the many comments and debates by legal scholars, judges and lawyers on the doctrine of comparative negligence and its relation to the doctrine of contributory negligence. We recognize that the doctrine of contributory negligence has been severely criticized by eminent legal scholars and by judges who have abolished it by judicial decision, but we also recognize that "(t)he great majority of the jurisdictions which have recognized the applicability of the comparative negligence doctrine in negligence actions generally, have done so under statutory provisions expressly imposing the doctrine." Annot., 78 A.L.R.3d 339 (1977).

The Supreme Court of Illinois, when it declined to abrogate judicially that state's contributory negligence defense, said:

After full consideration we think, however, that such a far-reaching change, if desirable, should be made by the legislature rather than by the court. The General Assembly is the department of government to which the constitution has entrusted the power of changing the laws.

Where it is clear that the court has made a mistake it will not decline to correct it, even though the rule may have been re-asserted and acquiesced in for a long number of years. No person has a vested right in any rule of law entitling him to insist that it shall remain unchanged for his benefit. But when a rule of law has once been settled, contravening no statute or constitutional principle, such rule ought to be followed unless it can be shown that serious detriment is thereby likely to arise prejudicial to public interests. ...

Maki v. Frelk, 40 Ill.2d 193, 239 N.E.2d 445 (1968).

After due and deliberate consideration, we hold that, even though this Court has the inherent power to change the common law rule of contributory negligence, it should, as a matter of policy, leave any change of the doctrine of contributory negligence to the legislature. By refusing to exercise our inherent power, we follow the procedure common to most jurisdictions. We note that the change from contributory to comparative negligence in most, but not all, jurisdictions has come through the legislative process. Annot. 78 A.L.R.3d 339 (1977).

II

Plaintiff Golden claims that summary judgment was inappropriate as to the wanton count in his complaint, because, he says, contributory negligence is no defense to a wanton count.

Golden is correct in his claim that contributory negligence is inapplicable to a claim of wantonness on the part of the defendant, but he is not correct in his claim that summary judgment was improvidently granted in this case. Golden stipulated that he waived any hearing on the motion for summary judgment, and he offered no evidence in opposition to the motion for summary judgment other than the matters which were in the record at that time.

We have reviewed McCurry's motion for summary judgment and the materials offered in support thereof, and we are not convinced that the trial court incorrectly found no genuine issue of material fact and that McCurry was entitled to a judgment as a matter of law. We need not address that claim in this case because the parties did not seriously address that issue at trial or appellate level. In this proceeding, it is quite obvious that the plaintiff, in order to raise the theory of comparative negligence, stipulated that he was contributorily negligent. The briefs of the parties, with the exception of a page or two, are devoted entirely to that issue. If plaintiff wanted to preserve his right to a trial by jury on the wanton count, he should have made that point clear at the trial level, and argued the point here on appeal. The record, the briefs and the oral arguments presented lead to the inescapable conclusion that the only meritorious issue on this appeal is whether this Court should abolish the doctrine of contributory negligence. Rule 1 of the Alabama Rules of Appellate Procedure states that this Court's rules of review are to be construed to assure the just determination of every proceeding.

We have duly and deliberately considered all of the arguments and briefs of the parties, including those of amici curiae. We are clear to the conclusion that the significant and dispositive issue on this appeal was whether summary judgment was appropriately granted on the plaintiff's negligence claim, when the plaintiff admitted that he was contributorily negligent and that his negligence proximately contributed to his own injuries. We have decided that issue.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, ALMON, and SHORES, JJ., concur.

BEATTY, J., concurs specially.

EMBRY, J., concurs in the result.

FAULKNER and JONES, JJ., dissent.

BEATTY, Justice (concurring specially):

I agree with the views expressed in the per curiam opinion and wish to add some observations upon another dimension to this problem.

The substitution of the defense of comparative negligence for contributory negligence has much to offer. As Dean Prosser relates, contributory negligence is not really negligence at all, but "contributory fault." Prosser, Law of Torts at 418. Because "fault" may be relative, or comparative, comparative negligence, or "contributory fault," would weigh the degrees of legal responsibility and condition recovery accordingly.

Until the decision in Grantham v. Denke, Ala., 359 So.2d 785 (1978), and those cases following the rationale of that decision, e. g., Fireman's Fund v. Coleman, Ala., --- So.2d ---- (1980) (MS. August 8, 1980), I believed that this Court had the inherent power to change common law precepts in instances in which change was clearly necessitous, and the exercise of this Court's power was appropriate. That view would accord with the positions of some of those states which have made this change, while others have relied upon legislative action to effect that change. The Grantham line of cases, it seems to me, has circumscribed this Court's power to make that change. In essence, Grantham decided that under Section 13 of the Alabama Constitution the legislature itself could not deprive a person of common law rights and remedies, absent some quid pro quo or a perceived social evil. It should be conceded that a common law defense, such as contributory negligence (see Butterfield v. Forrester, 11 East 60, 103 Eng.Rep. 926 (1809); Smith v. Smith, 2 Pick., Mass., 621 (1824)) is entitled to the same respect as a common law right of action. Thus the reasoning underlying Grantham limits even the legislature's power to alter the defense of contributory negligence.

Now if the legislature is limited in making such a change, is not this Court likewise limited? It is just as evident under the limitation of Section 13 that ...