Morton v. Merrillville Toyota, Inc.

• Decision Date: 21 November 1990
• Docket Number: No. 56A03-8912-CV-556,56A03-8912-CV-556
• Citation: 562 N.E.2d 781
• Court: Indiana Appellate Court
• Parties: Charles E. MORTON and Steel & Machinery Transport, Inc., Appellants (Defendants Below), v. MERRILLVILLE TOYOTA, INC., Appellee (Plaintiff Below).

Page 781

562 N.E.2d 781

Charles E. MORTON and Steel & Machinery Transport, Inc. Appellants (Defendants Below), v. MERRILLVILLE TOYOTA, INC., Appellee (Plaintiff Below).

No. 56A03-8912-CV-556.

Court of Appeals of Indiana Third District.

Nov. 21, 1990.

Frank J. Galvin, Jr., Daniel A. Sawochka, Galvin Stalmack & Kirschner, Hammond, for appellants.

Frederick J. Ball, Kingsley G. Regnier, Goodman Ball & Van Bokkelen, Highland, for appellee.

STATON, Judge.

Charles E. Morton and Steel & Machinery Transport, Inc. bring this interlocutory appeal in response to the trial court's denial of their motion to dismiss Merrillville Toyota, Inc.'s claim for loss of services of its employee. Their appeal presents us with two issues:

I. Whether the trial court erred in denying Morton's motion to dismiss Merrillville Toyota's claim for the loss of its employee's services and the resulting loss of profits.

II. Whether the damages sought by Merrillville Toyota are based upon mere conjecture, speculation and guesswork and therefore not properly the subject of a damage award.

Since our treatment of Issue I mandates reversal, we decline to address Issue II.

The facts alleged in the complaint indicate that Michael S. Marino was operating an automobile owned by his employer, Merrillville Toyota, when he collided with a semi-tractor trailer operated by Charles E. Morton in the course of Morton's employment with Steel & Machinery, Inc. As a result of the collision, Marino was injured and was unable to resume his normal duties with Merrillville Toyota.

Merrillville Toyota brought this lawsuit against Morton and Steel & Machinery, Inc., (collectively, "Morton") seeking compensation for loss of Marino's services and damage to its automobile. The defendants filed a motion to dismiss pursuant to Indiana Rules of Procedure, Trial Rule 12(B)(6), alleging that Merrillville Toyota's claim for loss of Marino's services failed to state a claim under Indiana law. They appeal the denial of that motion.

Upon review of the denial of a motion to dismiss pursuant to Trial Rule 12(B)(6), we must determine whether the complaint is sufficient to state any valid claim. Lincoln Nat. Bank v. Mundinger (1988), Ind.App., 528 N.E.2d 829, 832. In so doing, we view the complaint in the light most favorable to the plaintiff and with every inference drawn in his favor. Id.

Our review of the legal sufficiency of Merrillville Toyota's complaint takes us back to the genesis of our American legal system. Although the United States became politically emancipated from Great Britain in the late eighteenth century, it did not divorce itself culturally from the mother country. Among the cultural baggage retained by our infant nation was the English common law system. The basis of our present system of jurisprudence, the Anglo-Saxon common law consisted of principles and rules of law which arose and were perpetuated in the judgments and decrees of the English courts, and which were founded upon usages and customs of antiquity. One such rule of law gave rise to an action per quod servitium amisit. Literally, "whereby he lost the service," ¹ Blackstone described the cause of action as follows:

A master also may bring an action against any man for beating or maiming his servant: but in such a case he must assign, as a special reason for so doing, his own damage by the loss of his service; and the loss must be proved upon the trial.

1 W. Blackstone, Commentaries on the Laws of England 429 (9th ed. 1783).

The action per quod servitium amisit was borrowed by the English from the early Roman law. The Roman actio iniuriarum seeking recovery for injury to members of a household could only be brought by the head of the household--the paterfamilias. The Roman view of the household was broad, and included relatives, dependents, and slaves, all of which were closely identified with the paterfamilias. In incorporating this notion into the common law, the English allowed both a direct action for injury to a servant or another under the master's power, as well as an indirect action for the consequential loss of his services. Sayre, Inducing Breach of Contract, 36 Harvard L.Rev. 663 (1923). Thus, the action gained acceptance in the time when the master had a proprietary interest in the servant, acquired through the hiring of the servant and purchased through the payment of his wages. Id.; Inland Revenue Comm'rs v. Hambrook (1956) 2 Q.B. 641; 57 A.L.R.2d 790, 795.

Consistent with its rationale, the action was limited to injury to domestic servants. Inland, supra, 57 A.L.R.2d at 795; Taylor v. Neri (1795) 1 Esp. 386, 170 Eng.Reprint 393. Cf. Martinez v. Gerber (1841) 3 Man. & G. 88, 133 Eng.Reprint 1069. Such servants were a part of the master's household, and thus enjoyed a quasi-familial relationship with the master. Inland, supra, 57 A.L.R.2d at 797. While the domestic servant had an expectation that he would be cared for by the master, the master had a corresponding property interest in the servant, and if the servant was injured, the master could reasonably expect compensation for his trouble. Id. at 795.

Over time, the makeup of society changed, and the English courts found that the rationale underlying the action per quod servitium amisit was no longer viable. The modern employment relation in England, as in the United States, does not depend upon status but arises out of a contract between the "master" and the "servant". In 1956 the English Court of Appeal in Inland Revenue Comm'rs v. Hambrook, supra, stated:

Now, having traced the history of this action, I think it should be confined today (as it was in the eighteenth century) to the realm of domestic relations where a member of the master's household is injured: for that is the only realm to which it can in reason be applied. It does not lie, therefore, at the instance of governments, limited companies, or other employers who keep no household.

57 A.L.R.2d at 796. Thus, if the action per quod servitium amisit ever allowed recovery by an employer for an injury to non-domestic employees, such an action has now been expressly repudiated in the English common law by the Inland decision.

On the other side of the Atlantic, the courts in the United States had adopted the action in whole cloth from the Anglo-Saxon common law. See e.g. Woodward v. Washburn (1846), N.Y., 3 Denio 369; Coal Land Development Co. v. Chidester (1920), 86 W.Va. 561, 103 S.E. 923, overruled on other grounds Nemo Foundations, Inc. v. New River Co. (1971), 155 W.Va. 149, 181 S.E.2d 687; The Federal No. 2 (2nd Cir.1927), 21 F.2d 313, overruled, Black v. Red Star Towing & Transp. Co., Inc. (2nd Cir.1988), 860 F.2d 30; Earley v. Pacific E.R. Co. (1917), 176 Cal. 79, 167 P. 513; Clark v. Gay (1901), 112 Ga. 777, 38 S.E. 81; Dennis v. Clark (1848), 56 Mass. 347; St. Paul v. Sorenson (1969), 283 Minn. 158, 167 N.W.2d 17; Campbell v. Cooper (1856), 34 N.H. 49; Wolff v. DuPuis (1963), 233 Or. 317, 378 P.2d 707, overruled on other grounds Bahler v. Fletcher 257 Or. 1, 474 P.2d 329; Fairmount & A.S.P.R. Co. v. Stutler (1867), 54 Pa. 375; Trow v. Thomas (1898), 70 Vt. 580, 41 A. 652. Some early American courts extended the action to allow recovery for negligent injury even to non-household employees. See e.g. Woodward, supra. However, like their English counterparts, courts in this country began to note that the rationale for the action for negligent injury to a servant or employee no longer rang true in today's society. The number of states which recognize the action has been gradually decreasing, with many courts noting the trend toward non-recognition of the action and the repudiation of the action in the country of its origin. See Heimbrock Co. v. Marine Sales & Service (1989), Ky.App., 766 S.W.2d 70; Cravens/Pocock Ins. v. Beasley Const. (1989), Tex.App., 766 S.W.2d 309; Champion Well Service, Inc. v. NL Industries (1989), Wyo., 769 P.2d 382; Mattingly v. Sheldon Jackson College (1987), Alaska, 743 P.2d 356; Rolling Fashion Mart, Inc. v. Mainor (1986), 80 N.C.App. 213, 341 S.E.2d 61; Ireland Electric Corp. v. Georgia Highway Express, Inc. (1983), 166 Ga.App. 150, 303 S.E.2d 497; Zawadzki v. Checker Taxi Co. (N.D.Ill.1982), 539 F.Supp. 207; B.V. Merrow Co. v. Stephenson (1980), 102 Mich.App. 63, 300 N.W.2d 734; Frank Horton & Co., Inc. v. Diggs (1976), Mo.App., 544 S.W.2d 313; Steele v. J. and S. Metals, Inc. (1974), 32 Conn.Sup. 17, 335 A.2d 629; Myrurgia Perfumes, Inc. v. American Airlines, Inc. (1971), 68 Misc.2d 712, 327 N.Y.S.2d 861; Chelsea Moving & Trucking Co. v. Ross Towboat Co. (1932), 280 Mass. 282, 182 N.E. 477.

Turning to the law in our own state, we find no definitive Indiana precedent on the issue of whether an employer may recover damages for loss of an employee's services due to negligent injury to the employee by a third party. Notwithstanding the absence of caselaw on the issue, Merrillville Toyota argues that Indiana has adopted the English common law as part of the hierarchy of laws in the State of Indiana, which we must follow. IND.CODE 1-1-2-1 (Supp.1990). We agree that decisions should be governed by precedent, but when the reasons for a rule of law cease to exist, the rule should be discontinued. McLochlin v. Miller (1966), 139 Ind.App. 443, 217 N.E.2d 50, 52. When the question is properly raised, it is the duty of the court to investigate the wisdom of precedents established many years ago. Id.

Merrillville Toyota cites the following language from the Indiana case of Jackson v. Pittsburgh, C.C. & St.L. Ry. Co. (1895), 140 Ind. 241, 39 N.E. 663 in support of its position that we must apply the common law rule:

The rule at common law is that a parent may recover from a wrongdoer damages for depriving him of the services of his child upon the same principle that the master recovers for the loss of services of his servant.

(Emphasis added).

Merrillville Toyota's reliance on this language is misplaced. Our Supreme Court in Jack...