Lauck v. General Tel. Co.

• Decision Date: 27 September 1974
• Docket Number: No. 73--259,73--259
• Parties: Lewis Russell LAUCK, Appellant, v. GENERAL TELEPHONE COMPANY, a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 759

300 So.2d 759

Lewis Russell LAUCK, Appellant, v. GENERAL TELEPHONE COMPANY, a Florida corporation, Appellee.

No. 73--259.

District Court of Appeal of Florida, Second District.

Sept. 27, 1974.

E. B. Rood, Rood & Charlton, and Theodore D. Lindgren, Tampa, for appellant.

Daniel A. Carlton, Dart, Dickinson, O'Riorden, Gibbons & Quale, Sarasota, for appellee.

McNULTY, Acting Chief Judge.

In this action for damages appellant sued in two counts, each seeking recovery for fire damage allegedly caused when lightning struck a main telephone line and flowed through the wires into appellant's barn-office building in which telephone service had been installed by appellee/General Telephone Company.

Count I, predicated on negligent installation, was dismissed because the trial court found it on its face to be barred by the statute of limitations. Count II, sounding in implied warranty of fitness, was dismissed for failure to state a cause of action and, in addition, the court found that it too was barred by the statute of limitations. The Ad damnum included damage to the real estate, more specifically the barnoffice building permanently attached thereto, and a claim for the loss of the personal property within such building.

The barn caught fire in May 1969 and this action was begun in August 1972. The first question then is whether a three year statute of limitations applies as to each or either of the dismissed counts or whether a four year statute applies. Additionally, of course, the question remains whether Count II states a cause of action in the first place. We think the four year statute applies as to Count I (except for the claimed damages to the personal property) and we reverse the dismissal thereof. But we agree with the trial court that Count II does not state a cause of action on an implied warranty of fitness. As to the latter count, then, we need not fully consider the limitation question.

To dispose quickly of the claim for personal property damages we hold that such claim is clearly barred by Section 95.11(5)(c), F.S.1973, which expressly provides that actions thereon must be commenced within three years. This action was too late.

As to the remainder of the negligence count, the negligence alleged therein related to improper grounding measures or inadequate lightning arresters used in installing the phone service to the office-barn so that, when struck by lightning, the charge flowed through the wires into appellant's building instead of being diverted to the ground. The trial court, perhaps not erroneously, considered these peculiar facts as constituting a 'trespass' on or upon appellant's building. Accordingly, he was of the view that Section 95.11(5)(b), F.S.1973, applies, which section specifically provides that 'an action for trespass on real property' can only be commenced 'within three years.' He concluded, therefore, that the four year statute ¹ relating to 'any action for relief not specifically provided for' (which would include the usual negligence action) was inapplicable.

Even assuming this to be truly a 'trespass' action, however, we can still articulate the applicability of the four year statute. The principal question involved is whether the 'trespass' contemplated by the three year statute, i.e., section 95.11(5)(b), Supra, is intended to encompass both common law trespass Quare clausem fregit, i.e., a Direct invasion of the property right, and trespass on the case, i.e., an Indirect invasion resulting from negligence, so that it may be said that this action is thus 'specifically provided for' in the statute. Our present three year statute was grandsired by the 1828 statutes which expressly listed both 'trespass Quare clausem fregit' and 'all actions . . . upon the case.' In 1872, however, that statute was revised by deleting each of the above phrases and substituting therefor the present single phrase 'trespass on real property.' But during that time, while the narrow common law distinction between the two forms of trespass were widely recognized, the single term 'trespass' nevertheless came to refer only to a forcible, direct invasion of a property right and not to a mere consequential or indirect invasion resulting from a separate complained of act. ² This latter form of trespass had come to be referred to simply as an action 'on the case' and, of course, ultimately was absorbed within the generic term negligence. Its omission from the 1872 revision, therefore, was significant.

We conclude, then, that the single word 'trespass' as used in the 1872 revision of our statute referred only to the forcible or direct unlawful entry on land rather than including a consequential or indirect injury thereto resulting from 'trespass on the case' or negligence, and that such meaning has been carried over to our present statute. ³ This has likewise been the conclusion of a majority of other states which have considered the question ⁴ and we join them in holding that an action seeking damages for an indirect or consequential injury to real property and sounding in negligence is not a 'trespass' action within the contemplation of a statute worded as is ours. It follows, then, that Count I herein which alleges such indirect injury is not an action 'specifically' otherwise provided for in our limitation statute and is therefore one which may be commenced 'within four years' pursuant to Section 95.11(4), Supra.

Coming now to whether Count II states a cause of action we agree with the trial court that the complaint as framed alleges the furnishing...