Strozier v. Marchich

• Decision Date: 22 February 1980
• Citation: 380 So.2d 804
• Parties: Godfrey STROZIER v. Michael M. MARCHICH, Charles Harkins, J. C. Cooley, Roy Wingo, Guy Crump. 78-756.
• Court: Alabama Supreme Court

Page 804

380 So.2d 804

Godfrey STROZIER v. Michael M. MARCHICH, Charles Harkins, J. C. Cooley, Roy Wingo, Guy Crump.

78-756.

Supreme Court of Alabama.

Feb. 22, 1980.

Appeal from Circuit Court, Jefferson County; Hon. Thomas E. Huey, Jr., judge.

Robert B. Roden of Jones, Arnold & Roden, Birmingham, for appellant.

John H. Morrow and Braxton Schell, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellees.

PER CURIAM.

Affirmed on the authority of Sasser v. Dixon, 290 Ala. 17, 273 So.2d 182 (1973).

AFFIRMED.

All the Justices concur, except JONES, J., who dissents.

JONES, Justice (dissenting):

I respectfully dissent.

Plaintiff, alleging wanton injury, brought suit in 1978 against several of his co-employees arising out of a mining accident that occurred in 1975. Plaintiff alleges that his injury was proximately caused by Defendants' wanton supervision of his work and wanton inspection of the mine. The trial Court dismissed the complaint, holding the action is barred by the one-year statute of limitations (§ 6-2-39(a)(5), Ala.Code 1975).

Plaintiff appeals, contending that the allegations of wanton conduct are sufficient to state a cause of action in trespass subject to the six-year limitation (§ 6-2-34(2), Ala.Code 1975). Defendants' Appellees' position is that the complaint, alleging wanton supervision and inspection, merely alleges a failure to act, or an omission of a duty, and states a cause of action for trespass on the case subject to the one-year limitation rather than one for trespass subject to the six-year limitation.

I believe the trial Court erred in applying the one-year, rather than the six-year, statute of limitations. Therefore, I would reverse and remand.

In the early English law, remedies for wrongs were dependent upon the issuance of writs to bring the defendant into court. Two writs were available for remedies purely tortious in character: One, for the action of trespass; and the other, for the action of trespass on the case. The action of trespass was directed at serious and forcible breaches of the King's peace; and it was only in connection with criminal proceedings that damages were assessed incidentally in favor of the injured plaintiff. Prosser, Handbook on the Law of Torts (4th ed. 1971), § 7 at 28.

Thus, trespass was the remedy for all forcible, direct injuries, whether to person or to property. Trespass on the case developed later as a supplement to the parent action of trespass, designed to afford a remedy for obviously wrongful conduct resulting in injuries which were not forcible or not direct. The distinction between the two lay in the immediate application of force to the person or property of the plaintiff, as distinguished from injury through some obvious and secondary cause. Id., at 28-29. The distinction was not one between intentional and negligent conduct. The emphasis was upon the causal sequence rather than upon the character of defendant's wrong. Trespass would lie for all direct injuries even though they were not intended; and the action of the case might be maintained for those which were intended but indirect. Id., at 29.

The procedural distinction between trespass and case has long been antiquated. Modern law has almost completely abandoned the artificial classification of injuries as direct and indirect (as distinguished from remote), and looks instead to the intent of the wrongdoer, or to his negligence. Id., at 29. According to Prosser, the first step toward the modern concept of torts was taken when the action on the case was extended to include injuries which were not intended but were merely negligently inflicted, and were inflicted indirectly. ¹ Id., at 29.

The transition from the old English common law concept of torts (distinguishing between injury resulting from direct and indirect force) to the modern concept (distinguishing between injury resulting from intentional or wanton and negligent conduct) can be seen in the development of Alabama law from the early 19th century to modern times. In what, perhaps, is the earliest Alabama case treating the distinction between trespass and trespass on the case (Rhodes v. Roberts, 1 Stew. 145 (1827)), the original emphasis on causality, as opposed to intent, remained intact. In that case, the Court held that the master of a steamboat, from which a gun had been discharged injuring the plaintiff, was liable in trespass for punitive damages although the injury proceeded from want of due care merely. The Court stated the law as follows:

"As to the form of action for the injury charged, whenever the injury is direct and immediate, whether it proceed from design or negligence, trespass will lie. But where the injury is merely consequential, the remedy must be an action on the case." 1 Stew., at 146.

Nevertheless, a shift to an emphasis upon the culpability of the actor's conduct, as opposed to the causal relation of the conduct to the injury, can be seen as early as Bell's Adm'r v. Troy, 35 Ala. 184 (1859):

"It results from these plain principles, that a count which charges that Pleas willfully burned the dwelling-house of plaintiff, and that said slave was instigated and persuaded thereto by the defendant, is, in form, a count in trespass, and charges the defendant with the commission of a felony.

"On the other hand, some of the counts, in both the original and amended complaints, charge on the defendant's intestate no actual or intentional procuration of the arson, but seek to base his liability on his negligently permitting Pleas, his slave, and of known bad character, to run at large, contrary to law. These counts, if they have any legal validity, are in case, and should not have been joined with a count in trespass." 35 Ala. at 202.

It is interesting to note, further, that the above case was decided only a few years after the first legislative enactment of the six-year statute of limitations for actions in trespass in Code 1852, § 2477. I find no legislative history to aid an inquiry whether the legislature, then or in subsequent enactments of the Statute, intended the original early English common law distinctions to apply to trespass and to trespass on the case. In any event, Alabama case law, while retaining the causal terminology of the English common law, continued to distinguish between the two primarily on the basis of whether the injury-producing conduct was intentional or merely negligent, as is demonstrated by the following cases spanning the period 1877 through 1921:

"For a tort committed with force and intentionally, the immediate consequence of which is injury, trespass is the appropriate remedy. If the injury proceeds from mere negligence, or is not the immediate consequence of the tort, case is the appropriate remedy." Pruitt v. Ellington, 59 Ala. 454, 457 (1877).

"It is the general rule, well settled by the decisions of this court, that if a tort be intentionally committed with force, the immediate consequence of which is injury, trespass is the appropriate remedy; that trespass lies to recover damages for an injury which is the direct and primary and inevitable result of gross or reckless carelessness; but, if the injury proceeds from mere negligence, and is not the immediate consequence of the tort, and though proximate is secondary and consequential, and is not the necessary result of the negligence, an action on the case, and not trespass is the proper remedy. (Citations omitted.)" Alabama Midland Railway Co. v. Martin & Bro., 100 Ala. 511, 513, 14 So. 401, 402 (1893).

"To commit a trespass, warranting an action for that cause as distinguished from the distinctive action of trespass on the case, the damnifying tort must have been 'intentionally committed with force, the immediate consequence of which is injury,' or the injury must have been the direct, primary, inevitable result of 'gross or reckless carelessness.' (Citations omitted.) Shook's act in the premises, as described in the count, does not imply or import an intention to injure plaintiff's intestate. It is not averred to have been characterized by any degree of wantonness, or even recklessness. . . . By the introduction of the term 'negligently' in the phrase last quoted from the count, the pleader excluded intention and wanton or reckless disregard of consequences, in running the automobile upon or against intestate, as factors characterizing the tortious act a measure of exclusion that operated to deprive the court (so far as the defendant Shook was concerned) of an effect to implead Shook in trespass as distinguished from case." Aldrich v. Tyler Grocery Co., 206 Ala. 138, 139-40, 89 So. 289, 289-90 (1921).

Although, by this time, it was firmly established that injury arising from negligence may or may not be the result of direct force, these early cases appear to assume that the direct application of force always accompanies every intentional tort. It was not until Engle v. Simmons, 148 Ala. 92, 41 So. 1023 (1906), and Disheroon v. Brock, 213 Ala. 637, 105 So. 899 (1925), that the Supreme Court confronted this issue and expressly rejected the notion that the direct application of physical force was a necessary element of trespass when the injury sued upon was in fact the result of intentional tortious conduct. In Engle v. Simmons, a woman, who miscarried as a result of verbal intimidation by the defendant, brought suit in trespass for damages. The Court upheld the action in trespass even though no physical violence had been done to her person:

"Nor is it important that no physical violence was done her person. The bodily pain and suffering which she endured was in direct line of causation from the alleged wrongful act of the defendant." 148 Ala. at 95, 41 So. at 1023.

Engle v. Simmons was subsequently quoted with approval in the later case of Disheroon v. Brock, supra, in which an elderly woman brought an action in trespass to recover for fright and mental distress brought on by defendant's illegal...