Scott v. DunnScott v. Dunn
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 complаint for failure to state a claim upon which relief could be granted, based upon
The Scotts challenged the constitutionality of the statute on the grounds that it violated
“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 оwner 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.”
“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.”
The thrust of the appellants’ contentions for reversal of the trial court is that the Alabama Legislature, by enacting
When the Mississippi Territory was settled, the law adopted was that the land would be open territory; that is, a landowner
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 “closed state” stock law in 1939 (now found at
The appellants, however, allege that
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
To attack
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
The appellants contend that prior to the adoption of
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 one. Durden involved an appeal by the plaintiff after the dismissal of his complaint. He sued for injuries his minor son had received when bitten by “certain hound dogs, from ten to twenty in number.” The plaintiff alleged in his complaint that defendant “carelessly and negligently did permit [the dogs] to run at large, well knowing the said hound dogs then were used and accustomed to attack and bite mankind.” The Durden court was merely saying that the plaintiff‘s averments were sufficient to state that the owner had notice of the animals’ dangerous propensities. When Justice Goldthwaite wrote in that 1844 case “that the injury was attributable to some neglect on his part,” it is obvious he was talking about a neglect in allowing animals with known dangerous propensities to run at large. Justice Goldthwaite was, most certainly, not referring to the right to sue for negligence in allowing a cow (or other animal) to be upon a public way, for no such right had ever existed in Alabama. See, e.g., Nashville & Chattanooga Railroad Co. v. Peacock, 25 Ala. 229 (1854).
The appellants further rely upon Hopper v. Crocker, 17 Ala.App. 372, 85 So. 843 (1919). This was also a dog bite сase wherein the plaintiff alleged that the defendants, knowing that their pet “fice” dog had been bitten by a rabid dog and was likely to develop rabies itself, nevertheless allowed it to run at large. It bit the plaintiff and as a consequence she had to incur “great expense to take the Pasteur treatment, in seeking to be cured of her said injury.” This perfectly fits Justice Goldthwaite‘s
In further support of their contention that the general rules of common law negligence govern damages caused by livestock to an automobile, the appellants cite Pelham v. Spears, 222 Ala. 365, 132 So. 886 (1931). They state that the complaint in Pelham was dismissed because plaintiff failed to aver that “the cow was of such a nature that the damage done was likely to arise from such an animal and that the owner knew of its propensity” and “the injury must have been foreseeable and must have been proximately caused by the owner‘s negligence.” The appellants contend that this implicitly recognizes a cause of action against the owner of an animal for damage to a motor vehicle based upon ordinary principles of negligence.
The appellants, however, badly misperceive Pelham. It was just a case of a cow hit by a car. Because the appellants recognize that letting livestock run free was not considered negligence, and recognize that the Pelham Court would have required a showing of knowledge of an animal‘s mischievous propensities, but nevertheless contend that Pelham would have found liability upon proof that the injuries were the proximate result of the owner‘s action, it becomes clear that the appellants would have us hold that the cow‘s tendency to get in the road was a “mischievous propensity” which, uрon a showing of the owner‘s knowledge, would have supported a finding of liability. It is, however, obvious that the tendency of a cow to get in a road is not a “mischievous propensity,” whether or not the owner knows of the tendency. “Mischievous propensities” of an animal are its tendencies to bite, kick, gore, etc., not its tendencies to walk on a highway. Chief Justice Anderson recognized this in Pelham:
“The present complaint, while charging negligence, fails to establish a duty owing the plaintiff by the defendant not to permit the cow of the usual and ordinary nature and propensities to be upon the highway.” (Emphasis added.)
222 Ala. at 367, 132 So. 886. While the appellants allege that the defendants allowed the animal to roam at large with knowledge of its dangerous propensities, they make no claim that the animal‘s propensities, whether or not such propensities were dangerous ones, were the proximate cause of their damages. While the bare allegation is made that the defendants knew of the animal‘s dangerous propensities, if any, it is apparent that the overall issue here is whether
Pelham was a suit brought by the plaintiff for damages caused when his automobile struck a cow, which he alleged to be on a public highway through its owner‘s negligence. The plaintiff attempted to show that the cow‘s presence on the highway was in violation of a statute. Chief Justice Anderson recognized that in 1928 Alabama laws provided for “stock law districts.” Section 10207, Code of 1923, authorized county commissioners to supervise elections “for establishing stock law districts in their respective counties.” These districts were contrary to the general state law and in them it was forbidden to permit stock to run at large. Section 10215 provided for a penalty against the owner of livestock whose livestock caused damage “on the premises of another” within the “stock law district.”
Chief Justice Anderson wrote in Pelham that the Court considered plaintiff‘s allegation that the cow was on the road “contra formam statuti” to mean “in violation of the stock law.” Even with this assumption, howevеr, he wrote that even if the act alleged occurred within a stock law district, the complaint “shows upon its face that the cow was not unlawfully upon the highway.” The stock law, he stated, would have made it unlawful to permit stock to go upon the premises of another, but would not have
“The common-law rule that animals must be on owner‘s own premises does not obtain in this state. The rule is rather reversed and animals are permitted to run at large unless prohibited by statute. Means v. Morgan, 2 Ala.App. 547, 56 So. 759; M. & O. R.R. v. Williams, 53 Ala. 595; Hurd v. Lacy, 93 Ala. 427, 9 So. 378, 30 Am.St.Rep. 61.”
Pelham v. Spears, 222 Ala. at 366, 132 So. 886. In Pelham, the cow‘s running at large violated no statute. Thus the cow was legally upon a public road and since its presence was legal, there could be liability only if the defendant-owner knew of “such propensities as would probably result in the injuries charged.” Then, Chief Justice Anderson added:
“Even if the owner negligently permitted the cow to be on the highway, as charged in the complaint, the said negligence must have been connected with the damage and it should be averred and proved that the cow was of such a nature that the damage done was likely to arise from such an animal and the owner knew of its propensity.” (Emphasis added.)
222 Ala. at 367, 132 So. 886. In other words, (1) the general English common law rule that animals had to stay on their owner‘s land has never been law in Alabama; (2) even if there had been proven a stock law district, it would not have been unlawful for the cow to be on the highway; and (3) even if the owner was negligent in letting the cow on the public road or highway, for that negligence to result in liability, it had to be shown that the cow‘s nature made it likely to do damage if it got on a public road. There was no liability when a cow “of the usual and ordinary propensities” was allowed to be upon the highway and an automobile ran into it. There could, however, be liability if the cow was known to gore passersby or to charge motor vehicles and was allowed to go upon the highway and do just that.
A reading of Pelham v. Spears shows that no action existed in Alabama against an owner who allowed his cow to be upon a public highway and shows that the appellants are incorrect when they allegе that at common law, the driver of a vehicle, a passenger, or the owner of the vehicle had a cause of action for injuries caused by livestock if the acts of the animal‘s owner proximately caused the injury. Pelham reaches exactly the opposite result insofar as it relates to automobile collisions.
The appellants also allege that
Justice Maddox succinctly explained the effect of
“We think the legislature, in adopting the proviso in § 79 [now § 3-5-3(a) ], intended to make the owner or keeper of stock ... liable for damages in motor vehicle accidents caused by livestock only where the owner or keeper knowingly or willfully placed or put the livestock on the highway, road, or street.”
The appellants erroneously conclude that
“Counsel for appellant asserts that Section 79, supra [
§ 3-5-3(a), Code 1975 ], is violative of Section 13 of the Alabama Constitution which provides ‘That every person, for an injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law.’“The injury mentioned in Section 13, supra, is damage resulting from breach of a legal duty. Whatever damage results from doing that which is lawful does not lay the foundation of an action. Pickett v. Matthews, 238 Ala. 542, 192 So. 261.
“Prior to the 1939 Aсt, supra, it was lawful for one to suffer stock to run at large upon a public highway. Crittenden v. Speake, 240 Ala. 133, 198 So. 137.
“It became unlawful so to do by the 1939 Act. At the same time that the legislature created this new legal duty it also provided a remedy imposing liability for its breach. This remedy, in case of injury to motor vehicles, was limited to those cases where the owner knowingly or wilfully placed stock on the highway. These limitations placed on the liability thus created became a part of the right created. See, 1 Am.Jur., Actions, Sec. 11. Having the power to create a new legal duty, necessarily the legislature had a right to limit the liability for breach of such duty.”
39 Ala.App. at 656-57, 107 So.2d 907. We believe Judge Harwood was correct. The statute in question did not limit or destroy rights, but created them. The Legislature, in the creation of a new right, is certainly not prohibited by
AFFIRMED.
MADDOX and BEATTY, JJ., concur.
SHORES, ALMON and BEATTY, JJ., concur specially.
FAULKNER, JONES, EMBRY and ADAMS, JJ., dissent.
SHORES, Justice (concurring specially).
I agree that the judgment of the trial court is due to be affirmed and adhere to the views that I expressed in Fireman‘s Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1980), and as expressed by the opinion of the Court in Lankford v. Sullivan, Long & Hagerty, [MS. July 9, 1982] 416 So.2d 996 (Ala.1982).
ALMON, J., concurs.
BEATTY, Justice (concurring specially):
I agree with the majority opinion, and also adhere to the views expressed in my dissent in Fireman‘s Fund American Insurance Company v. Coleman, 394 So.2d 334 (Ala.1981).
FAULKNER, Justice (dissenting).
The Scotts challenged the constitutionаlity of the statute on the grounds that it violated the Equal Protection and Due Process clauses of the United States and Alabama Constitutions, as well as
A synthesis of earlier opinions construing
1) The right is voluntarily relinquished for equivalent benefits;
2) the statute eradicates a perceived social evil, or;
3) the cause of action is no longer of benefit to society.
Second, if the legislative enactment merely alters a common law right or remedy, or does not infringe on a fundamental right, the legislation will be upheld unless:
1) the cause of action has already accrued or “vested;” or
2) the legislation is not rationally related to a reasonable state objective.
Section 13 is contained in that portion of the Constitution entitled “Declaration of Rights.” The Declaration of Rights, like the Bill of Rights, denotes those protections guaranteed to individuals against intrusions of the legislature. This provision had its origins in the Magna Charta and was a restriction upon royal power. See Ex parte Pollard, 40 Ala. 77 (1866); 2 Coke‘s Institute, p. 55. Thus
It is a basic tenet of statutory construction that a provision should be interpreted to give effect to every portion of the enactment. In order to effectuate the provisions of
As early as 1866, this Court recognized a distinction between complete abolition of a cause of action and mere alteration of it. The Court stated, “the legislature may, consistently with the constitution, alter, enlarge, modify, or confer a remedy for existing rights.” Ex parte Pollard, 40 Ala. 77 (1866) (upholding constitutionality of “stay law“). “If the State legislаture should abolish all remedies, and provide none, or should provide such as would barely leave the remedy worth pursuing, then this court, in my judgment, would be bound, upon principle and authority, to hold such act unconstitutional and void.” Id., (Bird, J., concurring). “The essence of the provision is ... that an individual is entitled to a remedy for his injuries. Accordingly, a legislative enactment should withstand a
A thorough examination of the cases interpreting
Two basic questions are raised when interpreting
Protecting common law rights is similar to the Seventh Amendment‘s preservation of the right to jury trial in “actions at law.” See
Nonetheless, viewing
The term “fundamental right” is often used very loosely. But in this context, the term refers only to those rights which are so fundamental to an ordered society that the violation or abridgement of them would be constitutionally proscribed. Some such rights are expressly mentioned in our organic law, the written constitution, but others have been recently enunciated and afforded constitutional protection. Of the former, freedom of speech is an example, of the latter, the fundamental right to privacy is an example. See Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Thus, every fundamental and substantial right evеn though it may not have existed at common law, but which has become deeply embedded in our system of justice is constitutionally protected. See Fireman‘s Fund American Insurance Co. v. Coleman, 394 So.2d 334 (Ala.1981) (Shores, J., concurring).
The converse of the principle that
In sum, the legislative power is broad and subject to only narrow scrutiny under
As against a
1) The right is voluntarily relinquished by its possessor in exchange for equivalent benefits or protection; 2) The legislation eradicates or ameliorates a perceived social evil and is thus a valid exercise of the police power; or
3) The cause of action is obsolete and of no benefit to society.
Grantham v. Denke, 359 So.2d at 789 (Maddox, J., dissenting).
Now turning to the issue of whether
As early as 1844, this Court stated:
“[T]he owner of domestic animals, not necessarily inclined to commit mischief, such as dogs, horses, &c., is not liable for an injury committed by them, unless it can be shown that [1] he previously had notice of the animal‘s mischievous propensity; or, [2] that the injury was attributable to some neglect on his part.”
Durden v. Barnett & Harris, 7 Ala. 169 (1844). See Hopper v. Crocker, 17 Ala.App. 372, 85 So. 843 (1919), cert denied, 204 Ala. 698, 85 So. 922 (1920); 3 J. Dooley, Modern Tort Law, §§ 37.02 and 37.05 (1977).
In Pelham v. Spears, 222 Ala. 365, 132 So. 886 (1931), the Court refused to permit recovery by an automobile owner for damages caused by a cow which had escaped. The complaint was dismissed because the plaintiff failed to aver that “the cow was of such a nature that the damage done was likely to arise from such an animal and the owner knew of its propensity.” In other words, the injury must have been foreseeable and must have been proximately caused by the owner‘s negligence.
The Court at that time required knowledge of an animal‘s mischievous propensities before holding that the injury was foreseeable, because there was no rule or statute prohibiting livestock from running free, as there is today. Id. Thus, merely permitting the livestock to run free was not considered negligence because the owners had no duty to restrict their livestock. The case implicitly recognizes a cause of action for negligence of the livestock owner, but found that the complaint failed to aver that the injuries were the proximate result of the owner‘s action.
It is clear that at common law, the driver of a vehicle or owner had a cause of action for injuries caused by livestock if the acts of the animal‘s owner proximately caused the injury or if the owner knew of the animal‘s mischievous propensities.
The next step in the analysis is to determine if the legislature, by enacting Section 3-5-3(a), abolished all remedies for damages caused by a known mischievous animal or by the owner‘s negligence. The statute prohibits recovery unless the owner “knowingly or willfully put or placed such stock upon such public highway.” In Carter v. Alman, 46 Ala.App. 633, 247 So.2d 676 (1971), the Court of Civil Appeals discussed the intention of the legislature in barring recovery unless the livestock are willfully placed on the highway. In an action for damages to an automobile caused by striking a cow in the road, the Court stated:
“There was evidence that appellee often had cows out of his pasture, and that the fence was of insufficient height to properly contain his cattle. His cattle had been observed in and along the highway at other times and had been hit by automobiles.
“. . . .
“[T]he owner of the feasant beast [must hаve] placed or put it upon the highway with a ‘designed set purpose, intention, or deliberation.’ Evidence of negligence or gross carelessness is not enough [to establish liability under
§ 3-5-3(a) .]”
Clearly the effect of requiring specific intent to place livestock in the road “would barely leave the remedy worth pursuing.” The standard of liability is so high, that it would be almost impossible to meet. To require an injured person to prove that a livestock owner knowingly and purposefully
The final determination to be made is whether the abolition of the common law cause of action eradicatеs a social evil or whether the cause of action was voluntarily relinquished in exchange for equivalent benefits.
The paradigmatic instance in which protected rights are relinquished in exchange for statutory benefits is the workmen‘s compensation statute. Under the Workmen‘s Compensation Act, the employee relinquishes the right to sue the employer for negligence, and instead is guaranteed a remedy regardless of the employer‘s “fault” in causing the employee‘s injury. See Grantham v. Denke, 359 So.2d at 787. In the present situation, automobile drivers, owners and passengers relinquish the right to sue the owner of livestock for injuries caused by the owner‘s negligence or recklessness. In exchange, the injured parties receive nothing—there are no alternative remedies or schemes for compensation.
The immunity provisions of
Whether the statute eradicated a social evil in 1939, I cannot say. But clearly,
“[T]o hold a person liable for his carelessness is to make him more careful.... From [man‘s] dual capacity for human excesses springs the time-tested fault-based system of reparation for injury—its fountainhead being the imposition of duty to act prudently not to inflict injury to another, and its result being safer conditions for all of us.”
Fireman‘s Fund American Insurance Co. v. Coleman, 394 So.2d at 346 (Jones, J., concurring).
Judicial notice is taken that there are thousands of miles of highways in this state, and along with them, thousands of automobiles and hundreds of accidents, injuries, and deaths each year. The safety of those driving automobiles should not be jeopardized by the negligence or recklessness of livestock owners.
Parenthetically, I note that
JONES, EMBRY and ADAMS, JJ., concur.
JONES, Justice (dissenting).
I respectfully dissent. I concur generally in the dissent of Justice Faulkner. See my special concurrence in Lankford v. Sullivan, Long & Hagerty [MS. July 9, 1982] 416 So.2d 996 (Ala.1982). It is my belief that the challenged statute is so bad (speaking legally and not policy wise) that it cannot withstand constitutional attack (
While I personally embrace the Lankford test, as modified by my special concurrence, I believe its application renders the legislation here in issue constitutionally defective. To suggest that the statute afforded a right of action against the owner of livestock that did not otherwise exist, as opposed to restricting (or, in practical effect, virtually abolishing) the right of action, is, in my opinion, utterly ridiculous; and an opinion of this Court so holding should come as quite a shock to those “Black Belt” legislators who sponsore