Scott v. Dunn

• Citation: 419 So.2d 1340
• Parties: John C. SCOTT and Thelma K. Scott v. E. J. DUNN, et al. 80-829.
• Decision Date: 23 July 1982
• Court: Supreme Court of Alabama

Page 1340

419 So.2d 1340

John C. SCOTT and Thelma K. Scott v. E. J. DUNN, et al.

80-829.

Supreme Court of Alabama.

July 23, 1982.

Rehearing Denied Sept. 17, 1982.

G. Houston Howard, II, Wetumpka, for appellants.

Ted Taylor and Roger Morrow, Prattville, and Tom Wright, Montgomery, for appellees.

TORBERT, Chief Justice.

On January 16, 1980, John Scott, accompanied by his wife, Thelma Scott, was driving his automobile on Highway 14 in Autauga County, Alabama, when he struck a cow owned and/or cared for by Ben, E. J., and Glenn Dunn, and Dry Creek Farms. The Scotts brought suit in Circuit Court to recover damages for injuries they suffered as a result of the collision with the cow. The complaint alleged that the defendants were negligent, that they were reckless or wanton in their conduct, and that they failed to secure an animal of known mischievous propensities.

The defendants moved to dismiss the complaint for failure to state a claim upon which relief could be granted, based upon Code 1975, § 3-5-3(a). The Scotts moved for summary judgment, arguing that § 3-5-3(a) is unconstitutional. The trial court granted the defendants' motion to dismiss and denied the Scotts' motion for summary judgment.

The Scotts challenged the constitutionality of the statute on the grounds that it violated Ala.Const., art. I, § 13. Section 3-5-3(a) provides:

"The owner of such livestock or animal being or running at large upon the premises of another or upon the public lands, roads, highways or streets in the state of Alabama shall be liable for all damages done to crops, shade or fruit trees or ornamental shrubs and flowers of any person, to be recovered before any court of competent jurisdiction; provided, that the owner of any stock or animal shall not be liable for any damages to any motor vehicle or any occupant thereof suffered, caused by or resulting from a collision with such stock or other animal, unless it be proven that such owner knowingly or wilfully put or placed such stock upon such public highway, road or street where such damages were occasioned."

Code 1975, § 3-5-3(a). Section 13 of the Alabama Constitution provides:

"That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay."

Ala.Const., art. I, § 13. For the following reasons we hold that § 3-5-3(a) does not violate § 13 and we thereby affirm the decision of the trial court.

The thrust of the appellants' contentions for reversal of the trial court is that the Alabama Legislature, by enacting Code 1975, § 3-5-3(a), has denied a common law remedy to persons traveling upon the highways of this state in contradiction to Ala.Const., art. I, § 13. This is simply not the case. The Alabama Legislature has, in fact, given persons who suffer damages on the public roads and highways as a result of livestock thereon a new cause of action that did not exist at common law.

When the Mississippi Territory was settled, the law adopted was that the land would be open territory; that is, a landowner was required to fence livestock out to protect his private land. Livestock were permitted to run at large on open land and on the public roads and highways. When Alabama became a state in 1819, it retained, as part of its common law, this same rule adopted in the Mississippi Territory. Nashville & Chattanooga Railroad Co. v. Peacock, 25 Ala. 229 (1854).

In the case of Smith v. Causey, 22 Ala. 568 (1853), this Court stated the law as it stood in Alabama:

"At [Alabama] common law, where an injury to another arises from carelessness in keeping domestic animals, which are not necessarily inclined to do mischief, such as dogs, horses, &c., no recovery can be had against the owner, for an injury done by them, unless it is averred and proved that he knew their vicious propensities, and so carelessly kept them, that injury resulted to the plaintiff therefrom. Burk v. Dyson, 4 Camp. 198; Smith v. Pelah, 2 Strange 1293; Durden v. Barnett & Harris, 7 Ala. 169."

22 Ala. at 571. Several years later, Chief Justice Brickell, writing for this Court, said in Mobile & Ohio Railroad Co. v. Williams, 53 Ala. 595 (1875):

"The doctrine of the [English] common law in relation to trespasses by and upon cattle running at large has never been of force in this State. It was never applicable to our situation, and is inconsistent with our estray laws and statutes in reference to trespasses by cattle. These laws treat unenclosed lands as common of pasture, and permit an owner to suffer his cattle to run at large. N. & C. R.R. v. Peacock, 25 Ala. 229. The character of inclosures & fences is carefully defined. R. C. § 1282. If an animal suffered to go at large trespasses or should do damage on lands not inclosed as required, the owner is exempt from liability therefor; and if the animal is injured, the person inflicting the injury is liable for five fold damages. R. C. § 1283.... This legislation is all founded on the theory of the right of an owner to permit his stock to run at large. In the exercise of this right he cannot be molested, and if injury is wantonly or negligently inflicted on his stock, the law entitles him to redress. He has a perfect right to suffer his animals to run at large, and those who would guard themselves from damages in consequence of it must inclose against them...."

53 Ala. at 596-97. This law was reiterated by the Court of Appeals in Means v. Morgan, 2 Ala.App. 547, 56 So. 759 (1911):

"The [English] common-law rule that animals must be kept on one's premises does not obtain in this state. The rule is, rather, reversed, and animals are permitted to run at large unless prohibited by statute. M. & O. R. R. Co. v. Williams, 53 Ala. 595; Hurd v. Lacy, 93 Ala. 427, 9 South. 378, 30 Am.St.Rep. 61.

"The maxim that one who suffers his animals to run at large takes upon himself the risk incidental thereto applies only where the animals are trespassing on the lands of another, and not to animals running at large in the highway. Colvin v. Sutherland, 32 Mo.App. 77."

2 Ala.App. at 550, 56 So. at 759-60. See also, Rowe v. Baber, 93 Ala. 422, 8 So. 865 (1890); Wilhite v. Speakman, 79 Ala. 400 (1885); Alabama Great Southern Railroad Co. v. Jones, 71 Ala. 487 (1882). These cases make it clear that the common law of Alabama, as adopted from the Mississippi Territory, did not allow an action for damages on public roads and highways caused by an animal of normal propensities.

When the Legislature adopted the present "closed state" stock law in 1939 (now found at § 3-5-3(a)), it also altered the liability of a livestock owner with respect to the public roads and highways. While under Alabama common law a livestock owner had the right to turn livestock out onto the public way, upon passage of Title 3, § 79 (now § 3-5-3(a)) in 1939, a livestock owner could be liable when he knowingly or willfully put or placed such stock upon the public roads or highways. Therefore, for the first time in Alabama, a person who sustained damages on a public highway could recover against a livestock owner under certain limited conditions. This act created a new right of action, limited though it may be, and did not abolish any common law rights, for before the 1939 enactment, persons suffering injury or property damage because of an animal on a public road or highways had no remedy unless the animal was known to have dangerous propensities.

The appellants, however, allege that § 3-5-3(a) abolishes all common law causes of action against the owners of livestock by the owners or occupants of motor vehicles, except actions based upon proof that the owner knowingly or willfully put or placed such stock upon the public highway. As stated, the 1939 act did not abolish a remedy for a protected right, but, instead, created a right where none had previously existed.

While it has been correctly stated that the common law is constantly changing and that this common law cannot be restricted to its meaning as of the date of statehood, it would be incorrect to hold that the right of action urged by the appellants had somehow become the law at some time in the past, thereby gaining the protection of § 13, when no case law, common law, or legislation has heretofore allowed such a recovery in this state.

To attack § 3-5-3(a) as unconstitutional under § 13, as do the appellants, one must begin with this Court's decision in Grantham v. Denke, 359 So.2d 785 (Ala.1978). The cornerstone of Grantham was that § 13 prohibits the Legislature from abolishing a cause of action recognized at common law.

Yet the present case involved a right totally unknown to the common law of Alabama. As stated by Slagle v. Parker, 370 So.2d 947 (Ala.1979), the Legislature may bar or limit actions that were not a part of the common law. That is exactly what the Legislature did when it passed the forerunner of § 3-5-3(a) in 1939. Since the only prohibition on the legislative power arises when an act abolishes all remedies for a common law or fundamental right, and since it is clear that this action was not recognized at common law in Alabama, then the Legislature was within its power when it enacted § 3-5-3(a).

The appellants contend that prior to the adoption of § 3-5-3(a), a person injured by a domestic animal had a cause of action based upon proof that the owner of the animal was guilty of ordinary negligence in caring for that animal. We are compelled to reject this contention based upon our review of several old cases.

One case relied upon by the appellants is Durden v. Barnett & Harris, 7 Ala. 169 (1844). While the Durden court did indeed say that an owner of domestic animals is liable where the injury is attributable to some neglect on his part, the appellants overlook the fact that that case had nothing to do with any situation resembling the present...