*1 character; equally and so residential appears comprehensive far as plan general with welfare of a view the whole, city the inhabitants permissible. not Piecemeal ordinances are City People not favored. ex rel. Friend v. 609, Chicago, 16, N.E. 261 Ill. Ann.Cas.1915A, L.R.A.,N.S., 292, 438, Co., 112 1913; Rule Oil Golden Julian 671, 884, Kilgour Kan. P. 489, 1916; Gratto, 78, 112 N.E. Mass. Dorr, City 145 Mo. of St. Louis v. 976, 1897; Aitken v. S.W. S.W. 136 A. Borough Heights, of Hasbrouck 433, 1927; Youngstown City N.J.Misc. Co., 112 Ohio St. Bldg. Kahn Bros. ; 43 A.L.R. 1925 43 148 N.E. C.J. notes; Zoning (Bassett) 366 and Zoning p. 90; (Metzenbaum) The Law of 20, 21. pp. Our statute is declared to be cumu
lative, leaving 1878 and 1879 Sections Code of §§ sections, quite gen in full force. These character, opinion, in our eral in calling division of the different corporate territory within limits into compre according to a appropriate districts Luquire Funeral plan. White v. hensive Home, supra. us, record before As we question hold the ordinance void.
must below is reversed The decree in accord- here judgment rendered expressed. the views herein ance and rendered.
Reversed GARDNER, J., and FOSTER C.
LIVINGSTON, JJ., concur.
Supreme of Alabama. Court 5, 1941.
June
Rehearing Oct. Denied *2 Rice, Peyton D. Bibb and Bibb & all of
Birmingham, appellee. for BROWN, Justice. ap- This is an action on the case Breed, pellant as the administrator of Joe deceased,' death under § Wm. Dowdell Denson and Edward W. McDonald, Birmingham, both of ap- Code^
pellant.
complaint
Counts one and two of the
aver,
short,
that while said
Breed
Joe
crossing
was
defendant’s
rpn
track,
railroad
he was
defendant,
killed
a train of
proximately
his death
caused
negligence
of defendant’s
servants
scope
agents
acting
while
within
employment
operation
their
said
count,
The third
train.
otherwise
two,
charges
the other
said
same
“wanton, wilful,
death was caused
the servants or
intentional conduct of
agents”
causing said train
run
intestate.
said
pleas
The defendant
filed
in abatement
alleging that at the
of said intestate’s
time
under life
death he was
convict
sentence
penitentiary in Alabama.
Stone,
Code,
speaking
pleas,
through
said
demurrer
plaintiffs
overruled;
J.,
many years
afterwards
thirty
Chief
assigning
grounds,
Jus-
tice,
feelings
of sur-
took
observed: “Lacerated
ruling
plaintiff
said
because of
the
nonsuit,
relations,
capacity
de-
viving
and mere
of the Code'
authorized
*3
live,
ap-
money
permitted
819,
ceased to
if
to
1923,
1940,
7,
and
make
of
Code
Tit.
§
recovery
of
do not constitute the measure
pealed.
5,
Prevention
the act of Feb.
1872.
argument
appellee
The
in
is
statute,
of homicide is the purpose of the
consequence of his
and sentence
conviction
proposes
and this
accomplish
such
to
imprisonment
to life
said intestate was'
pecuniary
just.’
jury
mulct
the
‘deem
mortuus,
deprived
civiliter
and therefore
damages
The
punitive,
they
are
and
rights including
right
to
of all civil
the
so,
none
consequence
the less
in
di-
of the
the
injury resulting
redress for
from
civil
rection
damages
gives
the statute
to the
delict,
defendant’s
and therefore under the
when
They
recovered.
are assessed
the testator or
condition in
statute
"if
”
n
prevent
railroad ‘to
homicides.’
have
an action
intestate could
maintained
act, omission,
negli-
wrongful'
such
or
for
gence,
case, supra,
In the Sullivan
death,”
life
it had not caused
speaking through
pen
brain and
of
pro-
not within
of said intestate was
great jurist
same
“Commenting
observed:
provision
statute, and the
tective
of the
prevent
act
homicides,’
‘to
of Feb-
right
plaintiff
legal
without
to sue.
5, 1872,
ruary
Pamph.Acts 83, we, in Sa-
supplied.]
[Italics
Memphis
&
Company
vannah
Railroad
v.
Shearer,
statute,
said,
effect,
1923,
purpose
in
5293,
Code of
§
1940,
61,
3,
and result
provided
of the suit
Code
and
therein
modifies
re
were
§
not a mere
affirms the common law to
solatium to
the effect that
the wounded feel-
ings of surviving relations,
imprison
compensa-
a conviction and sentence to life
nor
ment,
tion for the last earnings
constitutes
death —that
of
of
state
the slain. We
who,
think the
person
although
statute
has
possessing natural
a wider aim and
life,
scope.
punitive
It is
rights
purposes.
has lost all his civil
and as t'o
Puni-
civilly
person
tive
is
of the
King,
corporation
them
dead.
or
Holmes v.
216
which
274;
412,
done,
Quick
wrong
113
Ala.
So.
is
Western
to
diligence
v.
stimulate
Alabama,
and
Ry.
violence,,
of
207
check
Ala.
92
608.
So.
thereby
order
give greater security
life;
to human
‘to
appellee’s
The answer to
conten
prevent homicides.’' And it
none
Code,
tion is that
does not deal
§
punitive
less
because of the direction the
persons
with the civil
whose
gives
damages
recovered.
act,
by “wrongful
omission,
caused
* * *
prevention
Preservation of
life—
negligence.”
It deals
the natural
its destruction
acts or
right
way
life which
affected
another,
omission of
of the
—is
by a conviction
to life im
and sentence'
statute; and
provisions
all its
are but ma-
prisonment.
very
judg
sentence and
chinery
carrying
it into effect.”
imposing
recognizes
ment of the court
right
and confirms the
convict
interpretation
This
application
and
purpose
scope
life. The
and
of our stat
the statute was restated and reaffirmed in
ute,
whatever
rule
§
Richmond &
Company
Danville Railroad
elsewhere,
protect
human
Freeman,
supra,
v.
and the statute has'
life;
act,
prevent
by wrongful
homicides
through
been
Codes
several
negligence
persons
omission or
and cor
present
since
time
without
servants;
porations,
agents
their
change.
diligence
protection
stimulate
in the
live,
respect
right to
the natural
of action which
stat
disability
condition or
gives
right,
ute
is a new
not derivative
protected.
& Mem
person so
Savannah
nor the
of succession to the
Adm’x,
Shearer,
phis Railroad
v.
property,
is not
slain.
672;
Rail
Ala.
South & North Alabama
personal representative
bringing
Sullivan, Adm’r,
Company
59 Ala.
road
v.
agent
prosecuting
suit acts as an
272; Richmond &
Railroad Com
Danville
legislative appointment for the effectuation
Freeman,
pany
97 Ala.
So.
pre
public policy
it declares —the
cited,
In the
homicides. Holt
Stollenw
case first above
vention of
erck,
decided at
912;
Term, 1877,
White v.
the December
So.
construing the
L.R.A.,
Ward,
February 5,
now
5696 Edmondson,
interpretation
This
the statute
N.S.,
Kuykendall v.
Adm’x,
King,
Henkie et
reaffirmed
al.,
Am.Rep.
in the
Stollenwerck, supra,
In Holt v.
following language:
“The condition that
Sayre,
speaking through
J., observed:
must
wrong
prosecute
an action for
the deceased
been
had it
by the
ful death
is vested
decedent
produce
failed to
had not death
2486)
creating
right (Code,
ensued, has no reference to the nature of
a defi
injury .sustained,
the loss or
or the
legislative purpose,
prevent homi
nite
recover,
entitled to
to the circum-
per
In
prosecuting
cide.
such
injury,
attending
stances
and the nature
strictly
representative does not act
sonal
in his
*4
wrongful
the
act or omission which
of
is
capacity
es
as administrator
made the
of the action.
basis
Saunders on
pro
decedent,
not
tate of his
because
ishe
Negligence,
& North
South
Alabama
ceeding
possession
to reduce to
the estate
Sullivan,
59 Ala.
R. R. Co. v.
281. As
decedent,
asserting
but rather
ishe
Co.,
in Whitford v. Panama R. R.
said
death,
right arising
after his
and be
phrase
where a similar
N.Y.
damages
cause the
recovered
not
are
sub
construed,
New
statutes was
the
York
ject
payment
to the
of the debts or lia
purpose
for
solely
‘is inserted
of defin-
bilities
He acts
the decedent.
rather
degrees
kind
delinquency
and
agent
appointment
as
legislative
an
for
with which the defendant must be charge-
legislative policy,
effectuation of the
”
subject
to
to
able in order
him the action.’
upon recovery
quasi
and
aas
trustee for
who stand in the
have
those
tees
relation of distribu
These decisions
been made the basis
strictly
to
estate
so called. White
in 8
the text
R.C.L.
p.
We
§
Ward,
v.
A.,N.S.,
157 Ala.
L.R.
held,
usually
however,
“It
quote:
that
568. And the
is vested in the
that
the condition
the action must be one
personal representative alone.”
by
could have been maintained
which
produce
failed
had it
to
deceased
Harking back, more than a half of a
ensued,
had not
has no
or
reference
century, we find that
Stone, in Sul-
of the loss
injury
or
to the-nature
sus-
livan’s
provision
said: “This
.case
tained,
entitled
recover,
statute
not
or
out,
can
carried
be
unless we
personal representative
allow the
the circumstances attending
of the but to
the in-
person whose death was caused by
nature
jury,
and the
of the wrongful act
‘wrongful
another,’
omission
or
which is made
omission
or
the basis of
bring the suit.
creates the
As stated
the action.
right unknown to the common
condition,
—a
construing this
it was inserted
* * *
provides
remedy.
law—and
solely
purpose
in the statute
for the
Hence,
personal
if we hold that
repre-
degrees
and
defining the
kind
delin-
sentative of a married woman can not
the defendant
quency with which
must be
statute,
maintain an action under this
we chargeable
subject
in order
him
deny
redress for
killing
all
of married action.”
wrongful
women
act or omission of
* * *
Jurisprudence,
in 16 American
And
It
another.
the
is here contended that
63,. 82,
usually
stated: “It is
wife,
held
living,
if
could
not
main-
have
the condition
that
that
action be one
name,
tained an action in her own
been maintained
co-plaintiff,
joining her husband
and
as
deceased
death had not
ensued has
her
can not
injury
the loss
reference to
sustained
sue. We do not think this is either the
recover,
entitled to
object'or
sense of the
clause referred to.
attending
injury
the circumstances
ihe
language, ‘if the
and
former could have
nature of the
act or
an action
the latter
the
which
omission
for
omission,
is made the basis of
the action.'
the same act or
had it failed to
As
death,’
construing
one court in
the stated
produce
intended to declare
this
condition, it
was inserted
act or omission which would
character of
purpose
action;
solely
defining
person by
support the
whom
kind
delinquency
degrees of
already
That
and
which the
it could maintained.
chargeable
must be
in order
provided for
that defendant
in the declaration
been
representative
sup-
should sue.”
him to the action.”
-the
[Italics
supplied.]
plied.]
[Italics
pleaded
text is our case
supporting
[189
582]:
Cited
Henkie,
theory
responsibility
Am.Rep.
of defendant’s
King
Indiana,
Guttery’s
accountability
Mississippi
death com-
and cases from
supported prehends
also
the wrong-
Dakota.
assertion
South
Co.,
negligent
Panama R. R.
N.Y.
ful or
acts or omissions of
Whitford
Company,
&
Mobile
Ohio Railroad
re-
damnifying consequences
sulting in
Death,
C.J.S.,
in 25
The text
states:
averred,
use
defendant’s
many
statutes
"The words common
facilities, etc.,
tracks,
under contract be-
in which the
limiting recovery
cases
in-
them, the
tween
defendant
liable.”
entitled
person would have been
jured
had not
if death
ensued
maintain
al., supra,
v. Derricott et
Suell
involved
defining
construed
charac-
up
right of the
defendants to set
self-
circumstances
ter of
accomplished
where the killing
defense
They
it was inflicted.
mean
under which
attempt
the deceased
in an
arrest
who
give
wrong in the first
shall
instance
committing burglary
the act of
was in
King Henkie,
action.”
to a
rise
custody
property in the
of the defendants.
505, Am.Rep.
and cases from
Ry.
v. Alabama Great Southern
Williams
York,
England
New
Indiana
Michigan,
*5
Co., supra, was
under the
an action
Em-
Administratrix v. Great
[Pym,
Northern
Liability Act,
ployer’s
commenced three
Smith, Q.
Company,
B.,
2
&
Railway
Best
years
injury,
after the
resulting ap-
supporting
text.
cited
the
759]
years
two
proximately
injury.
after
the
was
question
whether or not the
The
action
give
circumstances
If the facts and
compensatory damages
recover
action,
was
disability
the civil
cause of
rise
by the statute of limitations of
barred
whose death is
caused
the
does
year.
The holding was that the
Henkie,
not,
King
supra,
held in
by
in the
was
action
administrator
succes-
person’s
of such
affect the
adminis
the existing
injured
of. the
sion
for his
death.
sue
trator
employee,
quote
and we
from the
rendered at the
decision
De-
That
was
396,
486,
48
17
Ala.
So.
Ann.Cas.
[158
516]:
1886,
Term,
the statute as
and
in-
cember
“
statute,
of the
‘In the
we take
the
early decisions
terpreted in
has
these
been
is not
original one,
to be enforced
through the several Codes
brought
since
springing into
from
existence
the death
speaks
change, and it now
without
date
intestate,
previ-
having
of the
is one
.
Alabama
language
these
decisions.
the
in
existence, with
incident
ous
the
sur-
State,
219, 115
217 Ala.
Spooney v.
So.
vivorship, derived
the statute
from
itself”
supplied.]
[Italics
appellee cites and
on Law-
The
relies
applied by
This rule of succession was
386,
Seay,
Ala.
60
al. v.
So.
rence et
parte Adams,
Ex
supra,
the court
in
in
Railway
937;
Company
Northern Alabama
plea
sustaining a
in
filed
abatement
580;
Guttery,
189 Ala.
So.
Suell
the
5657 of
Code of
§
Tit.
al.,
et
161 Ala.
Derricott
So.
v.
895,
146, setting up
pendency
the
of a
L.R.A.,N.S., 996,
636;
18 Ann.Cas.
by
plaintiff’s
the
suit
intestate be-
Ry.
Alabama Great Southern
Williams v.
death, in
fore her
abatement of the
action
Co.,
17 Ann.
48 So.
Cas.
administrator,
the
under the Homicide Act.
Adams,
parte
Ex
holding
The substance of
was that
the
the
235; and Owens v. Auto
Mut.
imprison-
the intestate for false
al.,
Indemnity
Co. et
So.
ment,
abuse,
in
assault and
which she
sought compensatory damages, was the
presented
ruling
question
same as
cause of action under
on
demurrer
defendant’s
Act,
Homicide
and
administrator
question
not the
in
was
pleas
intestate.
stood in the shoes of his
This
question
discussed
cited cases.
Collier,
ruling
Bruce v.
conflict with
cases deals with the charac-
first cited
two
553, 554,
where
necessary
quality of the act
and
ter
observed:
was
case stated within
bring the
homicide
sufficiency
with the
The first dealt
passage
statute.
“At
time
our
thereto,
complaint on demurrer
prevent homicide,
and on down
presented,
question
second
to the Code of
our statute defining
opinion,
survive,
it in
actions
state
what
read:
“
demurrer to
plaintiff’s
overruling
repre-
to and
survive
‘Actions
pleas.
contracts, ex- the several
actions
sentative.—All
actions, ex-
pr implied,
personal
all
press
is therefore set
judgment
of nonsuit
reputa-
cept
injuries
vacated;
judgment
to the
rul-
aside and
ing
tion,
favor
Circuit
is reversed and
survive
Court
Code of
representatives.’
§ cause is remanded.
(2157).
(2555)
(2920)
35(2600)
Reversed and remanded.
per-
period actions for
all this
“During
not death ensued
THOMAS,
injury,
BOULDIN,
whether
sonal
and LIVING-
'
his
survive to
injury, did
STON,
from
concur.
JJ.,
the law
this state
In
administrator.
creating a new
passed
Act was
Homicide
GARDNER,
J.,
FOSTER,
C.
J., dis-
character, for
punitive
sent.
of kin entitled to
of the next
benefit
Rehearing.
On
estate.
as distributees
take
1907, (section 2496)
BROWN,
Code of
“In
Justice.
amended
strik-
above-quoted
appellee
The contention of the
that the
or,’ so that now
‘person
words
out
opinion precludes
foregoing
a defendant
‘injuries
person’ do sur-
actions
sued under
homicide act
pleading
from
injuries causing
this mean
Does
vive.
self-defense, contributory negligence and
Act?
Homicide
covered
those
assumption of risk is
clearly
so
a clear field for
not. There is
think
.
We
merit it would seem that no
answer to
in cases
of this amendment
operation
necessary.
personal injury
a suit for
pending
where
The authorities are uniform in
other cause than
from
plaintiff dies
*6
that
holding
such defenses
permissible,
are
for;”
ignores
and
the
injury sued
and
was
purpose
that
scope
and
interpretation
the statute—the
consistent
provision
qualifying
of the
in the statute
right of
Act—that
action
Homicide
“if
testator
or intestate could have
right;
a new
unknown
by it is
given
an
maintained
action for such wrongful act,
law,
come
ex-
did not
into
and
common
omission, or negligence, if it had not caused
wrong-
from the
death ensued
istence until
death.” Code
123. Stated
§
negligence.
act,
or
ful
omission
[Italics in
authorities,
that
supplied].
provision
qualifying
“was intended
deb
tó
61 states: “The view
Am.Jur.
elare the character of
or
omission which
upon the
based
which is believed to be
better
support
action;
would
person
wrongful
reasoning
stat-
that
by zvhomit could be maintained.” South &
statutes,’
are not ‘survival
but create
utes
Sullivan,
N. A. R. Co. v.
supported
the one
a
new cause
is
(cid:127)
supplied.]
[Italics
by
generally
by
the later
courts
only point
The
decided in this case
that
is
authority
particular.”
trend of
the common law disability
intestate,
of the
springing from
This
the rule
our decisions.
his conviction and sentence
life,
for
Davis,
preclude
does not
Kennedy v.
55 So.
plaintiff
as
Ward, administrator
104, Ann.Cas.1913B,225;
his
White
estate from maintain-
ing the action.
supra.
question,
principle
That
Indemnity
et
v. Auto Mut.
was settled in
Owens
case,
the Sullivan
policy,
decided
al.,
an insurance
at the
supra,
suit
December
Term, 1877,
years
ten
before
holding in
of the
that case
wo-
and the effect
married
given
men were
liability
right to
was not
for their
asserted
sue
was
within the
Lady
personal injury.
policy. See, Mi-
coverage
McDaniel,
Cleaners
familiar law that the
It- is
law
common
A.L.R.
note.
disability of married woman
to sue alone
for her
continued until the
therefore,
We,
hold
while
of the
enactment
“Married Woman’s Law”
deprived
his
intestate was
plaintiff’s
February
provided:
which
by
conviction and life sen
civil
tence to the
alone,
or
must sue
at law in
wife
penitentiary, said conviction
by
made
or with
all contracts
life,
upon
equity,
her,
him of the
deprive
did not
recovery
separate
of her
protection
for
or
within the
his life was
injuries
property,
for
such
court,
or
therefore,
property,
erred
Homicide Act. The
punitive,
prevent the tak-
income,
profits, or for
The
rents,
or
action
its
for
or
act;
by
prevent
life
a,ll
reputation;
or
of human
injuries
her
her,
by
he is
warning
en-
it
careless that
by
or
a law
made
upon
contracts
all
pun-
enters,
by
be mulcted
sum
such
she
into which
gagements
her,
wrong
jury
sued
his
shall as-
she must be
ishment of
as
committed
all torts
1886, 2347. sess.
were
she
sole.”
as if
supplied.]
[Italics
compensatory,
award is
sense
case,
to-
In Sullivan’s
pecuniary
pain
either for
loss or
and suf-
opinion:
court’s
“It
from the
quote
decedent,
nor for loss suf-
fering
contended,
wife,
living,
here
dependents
next of
fered
his
or
kin.
an
in her
action
not have
could
damages is not
compensatory
Evidence of
name,
joining her
husband
own
part of the es-
is no
even admissible.
personal repre-
that her
co-plaintiff, and
an
decedent in the sense of
estate
tate
do
can not sue. We
not think this
sentative
property
(cid:127)acquired
life,
cither
during
object
or sense of the clause
is either
personal injuries.
damages
language, ‘if
to. The
the former
referred
personal representative
appointed
ais
law'
have maintained
the.
agent
bring
the stat-
an action to enforce
omission,
for the same act
had
latter
wrongdoer.
providing
ute
In
produce death,’
failed to
intended to
pre-
disposition
assessed to
sum
of act
declare
or omission
character
vent homicides the lawmakers selected the
action;
support the
not the
would
kin, who,
next
existing law,
it could
whom
maintained.
distributees of the
left
estate
decedent.
provided
already been
for in the
That
beneficiary or beneficiaries become
that the
declaration
They
of the cause of
direct owners
may
action.
sue.”
should
upon,
agree
give
collect and
releases
n
part of the
was ob-
another
In
before
for the demand
an administrator
“Hence,
per-
:
if we hold that the
appointed. Surely
served
there is no need to fur-
representative
aof
sonal
married woman
support
ther
our line of
review
cases to
all
maintain an action
can not
under this stat-
They
propositions.
these
are found in the
deny
ute,
all redress for
killing
we
of annotations
above cited section of
women
the wrongful act or
married
our
Code.
new
.
omission
another.”
purpose of
If
the statute be what
*7
Apd again:
of the stat-
was,
original
title said it
and what
is,
‘when the death of a
ute
is caused
is,
simple question
court has said
then the
wrongful
another,
act or omission of
is,
the status
has
of civil death to do
what
former
with it?
may maintain an action.’ This statute con-
rights,
means the loss of civil
Civil death
clauses,
qualifying
tains no
limiting its
right
to
sue
courts.
including
provisions
any
remedial
class or classes
rights are all those which arise from
Civil
persons,
any
excluding
class from its
rights;
positive law. There are natural
wholesome
employs
terms.
per-
the word
rights which exist even if there were no
sense,
son
its
and it would
broadest
government;
rights
civil
defined
law.
every
seem
being falling within that
They
rights
are inalienable
with which
designation
general
may take shelter under
every
endowed
the creator. To
man is
its protecting wings.”
object
is the
them
end and
conserve
Among
government.
these are life and lib-
BOULDIN,'
THOMAS,
FOSTER, and
may
erty. They
be forfeited
the act of
LIVINGSTON;
JJ., concur in
forego-
possessor alone.
are not mean-
their
These
BROWN,
opinion
ing
J.
ingless platitudes. They are fundamental
they are of
our
KNIGHT,
concepts;
genius
in-
sitting.
J., not
Bill
See Section Alabama
stitutions.
BOULDIN,
C.J.S.,
p.
(specially
Rights;
Rights,
Civil
concur-
Justice
ring).
894.
Am.Jur.
inquiry
essence the
its
is this:
Reduced
has forfeited his natural
convict
A life
liberty,
right
not the natural
sentence of
im-
a convict
Is
pardoned,
may
and his
protection
for life entitled
live. He
prisonment
Rogers,
'prevent
Vann v.
Statute to
Homi-
restored.
Alabama
7, 123,
cide?
any
per-
life, by
orher off from
sonal
of action
what
the natural
If he has
n
injuries.
proceeds
on the
pre-
That case
law to
should the
process
reasoning
hypothesis,
vailed,
pre-
that if the commonlaw still
from
him
vent homicides not shield
actions for
in-
touching
be-
any
human
other
wrongful act as
woman,
juries to a married
she had no cause
ing?
action;
the cause of action was in the
the same
a crime
him is
To murder
recovery belonged
husband. The
him.
J.S., Con-
C.
man.' 18
the murder of another
victs,
merely joined
The wife
in the action to re-
2.§
cover
chose in action belonging
laws, enforce-
penal
Indeed,
the
protect
seems
husband.
following
Note the
against as-
state,
him
by the
able
Stone:
any other.
mayhem as
battery or
sault and
“This statute
contrary,
qualifying
contains no
authority to
find no
I
clauses, limiting
provisions
its remedial
would be a
any
thinking,
other
my
any
persons,
class or classes of
or exclud-
reproach to civilization.
any-
class from its wholesome terms. It
be1 convicted
can
life convict
employs
the word
in its broadest
man.
crime as
other
sense, and it
seem
every being
would
has made
state
Act
By the Homicide
falling within
general
may
designation
Not
safeguard to
additional
human.life..
take shelter under
wings.”
its protecting
by prosecution
enforceable
penal
a
in the
act,
The original
considered,
there
state;
used
punitive
but a
name
“person”
the word
instead
of “intestate”
by civil action
enforceable
statute
by
present
as in the
statute.
such
agent to recover
appointed
state
imposition upon the
just
abe
sum as
But it is said “There must
abe
cause of
culpability
by the
determinable
wrongdoer,
action.” What
is the cause of action?
of a
the death
causing
wrongful act
Time after
our
time
cases have followed
still a hu-
being. A life convict
human
plain
words of the statute. The cause
protection of
being entitled to all
man
of action is the
act causing the
men, unless
live
other
the natural
person.
death of a
Adams,
parte
The case of Ex
of ac-
this cause
creates
the statute which
235, 236,
dealt
protection. The
him
from
tion excludes
solely
question
with the
whether two suits
intestate could
“if the testator or
clause
maintained,
personal inju-
one for
wrong-
such
action for
maintained an
ry,
pending
suit
resulted
omission,
negligence, if it had
act,
ful
and a second suit under the Homicide Act.
provision
sole
caused death” is the
not
which
the court:
Said
“We think that
any exclusion of
life-
can be rested
* *
*
of action
identical—that
the statute.
protection
from the
convict
is, the
wrong.”
supplied.]
same
[Italics
quot-
point in
part,
see no
my
can
For
I
Speaking
Act,
of the Homicide
it was
cases
numerous
relying on the
ing and
further said:
wherein
construing this clause
*8
going to
defenses
dealing with
was
only applies
statute
when deceased
Lord
reference to
case. The
merits of the
he
could have maintained action had
sur-
was
em-
cases
to
Campbell’s Act in these
vived,
wrongful
of the
act
but the nature
arising from
defenses
phasize that all
basis
omission is the
action.
defeat an action
which would
circumstances
Sullivan,
South & North R. R. v.
59 Ala.
merits of the case
personal
on the
for
272.”
thought
in-
action. This
available1 this
are
definitely approved
Here the
court
ques-
not directed
of the
was
R.
v.
doctrine of South & North A. R.
Co.
Campbell’s Act
presented. Lord
tion here
Sullivan, supra, evidently intending to make
aim
compensatory. In this its
strictly
was written in
Adams
clear that what
from ours. This
purpose was different
and
difference
conflict
was not to be read as in
case
question be-
presents
real
Sullivan
case.
Death,
C.J.S.,
p.
us.
fore
15.
actions,
applied
As
to two
one a revivor
do Serviceas con-
our casesnow
make
To
personal injuries,
the action
anoth-
for
put
in conflict with the
to
them
tended
Act,
er an action under the
both
Homicide
beginning with
cases,
South &
other line
act,
wrongful
arising from the same
Company
Railroad
v. Sul-
North Alabama
parte
of Ex
Adams was followed and
Adm’r,
definitely
case
livan,
hold-
Collier,
approved Bruce
v.
clause has no reference to civil
this
against
further reasons
injured party,
where
disability
cutting
him 127 So.
Transfer
et al.
for
So.
McWhorter
Co.
of two actions
the maintenance
Peek,
291.
v.
232 Ala.
wrongful
same
discussed.
case
result
the Owens
was cor-
The
read, I
think there is
properly
When
presented
have been
rect.
seems
Adams,
parte
of Ex
for
occasion
criticism
by the
this court on lines covered
decision.
supra. My
merely
is we
adhere
need
Sullivan case
others
like effect
idea that our
the basic
appears
prin-
were
far as
not cited. So
prevent
this suit
ciple they
not raised.
assert was
homicides,
safeguard the natural
life.
light
Late
shedding
cases
distinct
Oliveria,
case are:
Oliveria
305 Mass.
personal injury
disability
to sue
25 N.E.2d
and Kaczorowski
„
never in-
death
from civil
resulting
Kalkosinski,
v
.
Pa.
184 A.
protection of
deprive one of the
tended
663,
649 insured, personal represen- der to the this statute upon law imposed by ages father tative when main- the intestate am au- could have deceased, operation in the of tomobile tained an out that action for pointed the same act had truck, the court produce course, failed to death”. suits Of precluding rule the common-law unT 1923, par- (Section der our 5293, their Code unemancipated minors 1940, 61, 3), by a not had changed § been not had ents repre- resulted there death would have been authorizing 5695) (Code, § re- no of action Quick action whatever. maintain an sentatives Railway Alabama, Western causing the injuries damages for cover 376, 92 So. child, although such stat- of a minor proviso of contain not did ute King, In Holmes 412, Ala. 113 So. Code, or ‘If testator reading: 275, 274, said: Court “‘Civil death’ of an action have intestate sense, in the literal as known at omission, act, negli- or such law, common was the extinction of ”’ death. if it not caused gence, relations, rights and so that estate his passed to his heirs as if public con- dead in And policy fact.” This sound Corpus Secundum, said in and decisions in our statutes struction Juris 1155, the opinion by Mr. term civil death “imports de- foregoing Justice privation of all BROWN, concurrence there- exercise or and in the whose BOULDIN, enjoyment depends on some provision conforms Mr. with Justice positive law”. See also my present view. I believe hold- Owens v. Auto Co., in conflict with the Indemnity be found Mutual 9, will not Ala. 177 So. 133, Mut. Indemni- reasoning in Owens v. Auto of which support decision lends Co., supra, careful consid- dissenting when these ty given views. And in Vol. Restatement of the Law Torts, eration. is the following: “Actions Causing expressions may there in our Death. Although the death statutes cre- harmony, that are in absolute decisions ate a new cause (i.e. action one not Witness the cases Ex in conflict. law), known at common they both and the Adams, 113 So. parte survival dependent statutes are upon the Collier, 221 Ala. Bruce v. rights of the deceased. Hence where no As I understand these two cases are could have been de- expression the last of this conflict and had he killed, ceased not been no by Mr. BOULDIN as Justice action exists.” appears from a consideration careful Collier, supra. Osburn, in Bruce v. The cases of Keister’s Adm’r v. Ex’rs, Keisler’s 123 Va. 96 S.E. say here, however, I it to concur Suffice 1 A.L.R. Brown, Wilson v. Tex. opinion of Mr. with the BROWN. Civ.App., S.W.2d likewise be noted in support of this view'. CURIAM. PER enough Under our statute it clear Opinion application re- extended and right”, deceased had no “substantive civil hearing overruled. use Virginia Court (cid:127) FOSTER, J., withdrawing his dissent. in the Osburn case Va. 96 S.E. [123 439], breach J., A.L.R. invasion (BOULDIN, All concur con- Justices of which said give could be rise to specially), except GARDNER, curring C. al- KNIGHT, under the facts here J., J., who dissents and not sit- leged, and the can ting. greater right than deced- had the GARDNER, ent. (dissenting). Chief Justice True, majority opinion, majority argued am unable to I concur. The parte Adams, in effect statute had no reference proviso overrules Ex my But it refer- and in individual. does have humble to the must action. There judgment runs ence to cause of counter construction *10 injured action of of our homicide been a cause found in Suell have supra, Derricott, Seay, Lawrence v. 161 Indeed in person'. v. 49 So. Ala. statute, very this L.R.A.,N.S., 996, Court, speaking of 23 18 Ann.Cas. 636 and Seay, “The stat- v. 60 Lawrence 179 Ala. said ute, 939]: So. 937. [179 therefore, clearly shows it is like expressly In these cases it was stated: of the same action right only given “that the of action [italics is un- a continuation brought by the opinion The supplied], one had been if in instant the case further states right the deceased.” -action not “deriva- True, tive”. new the statute creates a majority upon In the cases the relied right. very But purpose the of the statute action, there was cause of there were a as often cases, notably stated in our Suell rights subject those who civil to inva- had Derricott, So. therefore, are, at all sion. These cases not L.R.A., N.S., 996, re- Ann.Cas. analogous. Here the had no life convict futes the right statement that the of action invasion, and no very not derivative. origin It has its arose, continued, as was action the right of the action which the had intestate object prevailing of this statute. The if death had not intervened. plainer No ignores forceful apparently purpose statement of the statute can cases, supra, though the Suell and Lawrence case, be found than in the Suell where it engaged the Court was and def- a clear said: statute', inite construction of our homicide clearly “Statutes like ours were intended particular with original reference to the to correct what was a deemed defect of purpose. And to reach such a conclusion law, common right that the of action based comparatively parte our recent Ex case of person on a tort or injury Adams, died with supra, is overruled. statute, exists, person. Our as it now Nor case is the Auto Owens v. Mu- evidently was large degree in a modeled Indemnity Company, tual English after act of Parliament known 1937, opinion decided late as be- Act,’ Campbell’s as ‘Lord passed in the ing by Thomas, Mr. lightly to be so year 1846. It must be observed that disposed -opinion does prevailing of as right only given action is under this in this case. The mere statement that “the n personal representative statute to the when holding effect of the in that case was the the intestate could have maintained* an ac- liability within, asserted was not the cover- tion for the pro- same had it act failed to age policy”, does not tell the whole corollary that, death. A duce of this if story. This for the reason that back of wrongful complained of had not that holding and as its foundation was the produced only injury, an conclusion of deliberate the court that such injured person could not have maintained non-liability company insurance was then the an the result of the fact that the minor him- maintain cannot an under action the statute self, law, under common could not have death results. when would therefore maintained parent. an action seem to follow that all defenses -available In other words there was no of ac- defendant, to the if the action had been representative tion in under injured brought person when death Section the reason result, not did are available to defend- that, law, common the minor ant brought the adminis- would not had a of action person wrong- injured trator for the parent not ensued. And this ful death.” notwithstanding conclusion was reached All of our a cases are like effect and under which the action was only holding that action is did not contain the condition set forth wholly is, independent respect- new but I Section here involved: the testator “if insist, fully very in the teeth of the lan- or intestate could have an ac- guage giv- the statute and the decisions act, omission, tion for such ing it construction. negligence, it had not caused death”. very King Henkie, case of respectfully principle that in I submit 505, Am.Rep. 119, cited the Court overruled, if logic likewise Owen’s case is case, points purpose instant same consistency disregarded. not to it is*said: where has been sound The Owens case considered this, purpose ap- legislation, and like accepted law and was so counsel clearly to correct defect application rehearing. of the com- pellant, law, by a cannot, regard rule of well mon two cases due settled, that -a action based together. consistency, stand Brown, person, died with the .by Court in tort Texas- Wilson injured. the maxim supports Under fully case and ‘Actio supra, Owens n persona,’, per- moritur cum very personalis full and clear discussion of contains representative a deceased of, sonal question therein involved.
G51 Quick Alabama, Ry. v. Western Co. 207 dam- of loss or no action for maintain could * * * 376, 608, So. as follows: his resulting from death. age who, “Civilly state dead is the of a observed, each statutes, it will “These be life, although has all possessing natural lost where cases only in right give a of action rights civil to considered and as them is himself, injury not had if the the deceased dead. One result of civil death C.J. death, might have sustained in his resulted incapacity is sue in the to courts.” words, continue, in other recovery. They a proceeds point ‘a And the Holmes case specific distributees the benefit of law, of action'which, out that under our statute estate one the common right at civilly subject and thus dead is to administra- at the have terminated would actually injury re- in scope tion distribution as dead enlarge embrace and Torts, Cooley enough In it is fact. one sulting event clear from the death/ civilly incapacitated su- is from thus dead 264.” He all ing in courts. had lost civil noted, And, in the Court previously consequence and no such rights has supra, expressly stated Seay, v. Lawrence subject invasion. right a “it is like continua- this statute plaintiff’s Confessedly here intestate action, if had been of the same tion right no facts and the deceased”. not give rise to a circumstances Michigan in decision To like effect simple of action for reason 59, Vreeland, 33 S.Ct. R. Co. v. 227 U.S. C. 192, rights existed civil there no 417, 176, 196, 1914C, Ann.Cas. L.Ed. To the homicide say invasion. said: where deny civil not deal with does right action course, “As foundation a civil this is suit. Of one will injury original wrongful de- is cedent, is not this a suit. As contend civil generally held that the has been by the in York Court Little said New right dependent upon the York, 24, is a new action wood v. New N.Y. Am. 271, im- Rep. speaking in the decedent a statute of this existence purpose his death to have main- main mediately character: before “[The] injury.” wrong-doer deprive immunity an for his action tained (Italics supplied.) liability". from civil C.J.S., concluding in 25 And the sentence damages are, punitive, yet And while the Death, quoted in cited and the ma- case the Sullivan opinion, as follows: jority author of remarks: wrong in the first “They mean that true, damages, go ’tis estate a cause of ac- give shall rise to instance slain, and, effect, party compen tion”. ' satory”. action 'is well what is a cause of And holding result is also that Osburn, Virginia court stated may two there administrations on one Ex’rs, 123 Va. v. Keisler’s Keister’s Adm’r estate, yet the first while the convict 1 A.L.R. as fol- 96 S.E. sentence, alive under and the second : lows by wrongful after his death act. That end, say work out approaching question, we have “In least, presents a novel situation. elementary principle bear in mind the in no case action at law can If the action homi- (a) plaintiff found unless: then exist cide is not derivative what had, alleged the time cause of contributory at becomes of doctrine of- arose, right, action substantive negligence? say Or would the (con- or invasion of which breach one moment that one receiving wrong) a civil stituting in case a tort accept full settlement therefor could. and relieve the tort feasor of action; (b) a cause of gave rise to all further plaintiff be found to have had at liability, subsequent- though should remedy a civil is instituted ly time ensue? by action at law.” very question presented This & had Southern Bell Tel. Cassin plaintiff’s But intestate could have Tel. al., of our statute et 111 Ga. 36 S.E. 50 L.R.A. no cause of action virtue Pennsylvania Ry. Co., civilly him dead. Civil Hill which declared King, in Holmes v. is defined A. 35 L.R.A. 56 Am. death 412, Pa. 274, 275, quotation St.Rep. Thompso from n Fort *12 Co., Ry. Worth “continuation”, & Rio Grande Tex. one would be use the language Seay, supra. S.W. 1 Ann.Cas. of Lawrence v. in that such holding was each case enough It seems clear the statement in settlement and binding release was opinion that is not deriva- subsequent conclusive suit any and barred yet tive cannot And stand. to so hold of this character. statutes For, necessary to sustain the here. ruling derivative, .right there can be no of ac- upon by As the authorities relied plaintiff’s tion because intestate no majority the cited case of & Savannah right. such Shearer, Memphis Railroad Co. Admr’x, Ala. to the ef- merely upon rely cases which the majority damages fect that recoverable under persons were speaking who had a punitive homicide statute are and are as- action, rights they had civil sub- prevent sessed course homicides. Of invasion, ject language used well con- understood and was now must, course, light be considered in the Rich- proposition sidered as a in settled of the facts in each case. prevailing So Railway Danville v. Free- mond & considered, they have no substantial ten- man, 800, containing Ala. support dency to reached. conclusion full discussion. opinion speaks of the natural unable to see wherein these I am two life, recognized by which of course is cases, any upon majority relied in all. But life convict also has the natu support conclusion reached. manner wrongfully injured, ral to be upon is laid & North R. R. South Stress eye not to be made to suffer the loss of Sullivan, quota- Co. v. sight or his limbs or be made an invalid opinion. But when the' tions from days. his the remainder of These quoted language light is viewed rights yet, valuable natural likewise. And considered, questions inap- there under our “civil death” statute confessed present plicability to case becomes ly nothing. could recover he The differ * plain. perfectly There deceased was degree only, ence is one of and the dis woman, and the a married holding sought be made cannot tinction stand that the of her es- light full of sound reasoning. It the suit as the tate could maintain stat- the civil may be death statute is a harsh provided, expressly so and that ute and should be modified repealed. language hereinabove But 'with that we are not here concerned. quoted had no individual reference Sayre As said Johnson the suit whom Johnson, 201 provided That had been maintained. A.L.R. “It must still be conceded personal represen- naming that not for it is the courts sudden opinion tative. And further states policy strokes of deep to make innova language have reference does upon tions the established law.” support the- act which would or omission say illogical It is injured that the life or omission must for that act convict, suffering, maimed and can have give rise to a cause of action. The mar- recovery so long as there 'remains possessed ried case Sullivan woman life, a flicker body civil and a suit was maintainable moment the flame goes out and life is ex- vindication invasion of tinct, suddenly there arises cause of ac- rights, such and whether in her name or tion in the administrator to recover dam- -her husband jointly with was immaterial. ages for the very wrong, a redress which was denied yet the convict while point is that the facts and circum- in life. No result such was intended. gave stances rise to a cause of action and aspect With the humanitarian questions therein discussed had refer- prevailing may there only procedural ence entire matters. Cer- sympathy. But that is a matter nothing con- tainly said that case can be sideration law makers. construed as is not overriding function, Our here. the statute and our decisions to the effect the deceased himself original- must However we indulge in refinement ly have had a cause of action. Here con- reasoning, the fact remains .this is a fessedly he had He none. could' have (1 C.J.S., suit Actions, C.J. suit, maintained no present of which the 1), damages to recover for the' death of
65B *13 had no civil dead who civilly to invasion. majority is noted that authorities. entirely supporting such ac- very fact indeed the And been heretofore appears to have tion my is to of last resort td a court legal pro- persuasive mind rather such suit fore- has considered fession statute and language of the closed the same. opinions construing forego and re- discussion But further I dissent.
spectfully So.2d BANK COMMERCIAL NAT. TILLERY OF ANNISTON.
7 Div.
Supreme Alabama. Court 16, 1941.
June
Rehearing Denied Oct.