Hadley v. Bryars' Adm'r

58 Ala. 185 | Ala. | 1877

STONE, J.

The action in tbe present case is brought by tbe personal representative of Green B. Bryars, deceased, to recover for an alleged assault and battery on him in bis lifetime. There is nothing in tbe affidavit, bond or attachment, which tends, in tbe slightest degree, to show that tbe said alleged assault and battery caused tbe death of tbe said Green B. Bryars. Nor does either of said papers conform to tbe requirements of tbe act “to prevent homicides,” approved February 5, 1872, Pampb. Acts, 83, or show that the action was brought under that statute. The record presents tbe naked case of a suit brought by an administratrix to recover damages for an assault and battery committed on her intestate; tbe suit being brought after bis death. At common law, actions for injuries to tbe person could not be maintained after tbe death of the person injured. Actio per-sonalis moritur cum persona. — 3 Blackst. Com. 302; 1 Chit. ■PI. 68 ; 1 Brick. Dig. 13, §§ 192, 193. Such actions are not within tbe healing provisions of our statute, which declares that certain actions “survive in favor'of and against personal representatives.” — Code of Ala. § 2920. It follows from this that no action can be maintained at law on tbe facts set forth in the attachment proceedings; and the attachment should have been dissolved on the motion of the defendant.

The “act to prevent homicides,” approved February 5, 1872, declares a new right, and provides a remedy for its enforcement. To bring a case within its provisions, the pleadings, or attachment proceedings, as the case may be, must show that the action is founded on the wrongful act or omission of defendant, which caused the death of plaintiff’s testator or intestate. Less than this does not come up to the requirements of the statute. — See South and North Alabama Railroad Co. v. Sullivan, at present term. Tbe right under that statute being of its own creation, and the proceedings in the present record falling fatally short of its requirements, this suit can derive no aid from it. Nor is the defect one that can be remedied by amendment. — Code of Ala. § 8315.

The judgment of the Circuit Court is reversed; and this court, proceeding to render the judgment which that court should have rendered, doth order and adjudge that the attachment in this cause be dissolved, and the suit dismissed at the cost of the plaintiff therein.