59 So. 568 | Ala. | 1912
Lead Opinion
— This action is brought by the appellant, as administrator of the estate of Charlie Hull, deceased, for the death of said Charlie Hull, under the Employer’s Liability Act (Code 1907, §§ 3910-3913), with counts also on the common-law liability. The defendants filed a plea alleging that William J. Hull, the plaintiff in this case, who is also the father of the deceased, Charlie Hull, who at the time of his death was a member of the family of said William J. Hull, had previously brought suit against the defendant in this case for damages for the death of his said minor son, in which he recovered a judgment, which has been fully paid. The complaint in the former case, and the amendment thereto, are attached as exhibits to said plea, the first count being for employing the plaintiff’s said son in a hazardous business, without his consent;
Section 2485 of our present Code gives the right of action for the death of a minor, caused by wrongful act, to the father or mother, or, if they fail to act within six months, “the personal representative of such minor may sue, and in any case shall recover such damages as the jury- may assess; but suit by any one of them * * * shall be a bar to another action either under this section or under the succeeding section.”
The next succeeding section (2486), which gives the right to the personal representative to sue for wrong
Section 3912, in the chapter in our Code on “Employer and Employee,” provides that, if the injury to a servant or employee results in death, his personal representative is entitled to maintain the action, and provides that the damages recovered shall be distributed according to the statute of distributions.
This court has held that the effect of the Employer’s Liability Act is to designate the only person who can sue for the death of an employee, to wit, the administrator. — Lovell v. DeBardelaben C. & I. Co., 90 Ala. 13, 18, 7 South. 756.
The appellant argues that, as the administrator is the only person who can sue under the Employer’s Law, and the parent cannot, a suit by the parent cannot be res judicata as to a subsequent suit by the administrator.
The history of section 2485 may furnish some light on the proper interpretation of it. In 1885 a general act was passed providing that, when personal injury or death of a minor was caused by wrongful act, the father or mother, or in case of their death the légal representative, could maintain the action, “provided, that but one suit shall be maintained for the said injuries or death.” Acts 1884-85, p. 99. At that time the parent’s common-law right of action for injury, and the Homicide Act, were in existence, and the Employer’s Liability Act was before the Legislature, and passed a short time thereafter. The writer' is free to confess that, if it were a new question, he would be disposed to hold that that was a general act, applying to all cases of death by wrongful act; but the law is otherwise, as above stated, to the effect that it did not confer the
This act was substantially carried into section 25S8 of the Code of 1886, and section 26 of the Code of 1896, stating, in the place of the words of the proviso, that “a suit by the father or mother, in such case, is a bar to a suit by the personal representative.” Then comes our present section 2485 of the Code of 1907, fixing the conditions under which the personal representative may sue, to wit, after the parents have failed for six months to sue, and providing that a suit by either shall bar the other “either under this section or under the succeeding section.
As stated by this court: “The sole purpose and effect of this statute was to extend the right already lodged in the personal representative, to the father, and in certain contingencies to the mother” (Lovell v. DeBardelaben C. & I. Co., 90 Ala. 16, 7 South. 757); and we may add that the provisos, in various forms, were e\idently to make it clear that in thus conferring the right on the parent it should not create a multiplicity of suits on the same cause of action, but the policy was and is that, as the parent is supposed to be the one having the greatest interest, to let the parent have the direction and control of the entire matter. If the parent prefers to bring an action for his own benefit, let bim do so; if not, let him turn it over to the administrator, and said administrator may then bring any form of action that may seem best to him. The last clause of the
The appellant suggests that our decision in Williams v. S. & N. Ala. R. R. Co., 91 Ala. 635, 9 South. 77, that the damages in suits under section 2485, Code of 1907, are compensatory only, is erroneous; that the damages should be the same as under the succeeding (Homicide) statute. .
It is true that this court has recently held that the expression in the Williams Gase is a dictum, and not binding; also that, in suits under said section 2485, the damages are punitive and not compensatory. — L. & N. R. R. Co. v. Bogue, 177 Ala. 349, 58 South. 392. The writer, on careful examination does not agree with the conclusion in that case, because he does not see how the remark in the Williams Gase can be said to be dictum, when the whole case was before the court, and the remark in question was a part of the instruction of the court to the court below for the trial of the case on reversal; and because, also, after the Williams Gase had been quoted with approval in several other cases, the statute has been readopted with the construction on it; and also because, as shown by the history of this section, it did not originate in the Homicide Act at all, but was merely originally, and still is in the Code merely, a general act on the subject of parties to actions, and must necessarily apply to all actions for wrongful death. If this construction be given to this act, then it would necessarily follow that, when the parent sues under section 2485, the damages recoverable are punitive, and not compensatory (which has never been
In the opinion of this writer the mistake was in the first decision under the Homicide Act, for it is evident that the only meaning of the expression, that such damages should be recovered “as the jury may assess,” was that the former statute, which limited the recovery to $3,000, was repealed, and the jury should assess to any amount recoverable under the general principles of the law. As said by McClellan, J., in the case of Richmond & Danville Railroad Company v. Freeman, 97 Ala. 296, 11 South. 802, “a too farreaching influence was accorded to the- title of the act.” The fact that a wrong conclusion was arrived at under the Homicide Act does not justify this court in wrongly deciding as to the effect of this statute, after the court had so long acquiesced in the proper construction.
But accepting the recent decision as the conclusion of this court, it does not change the conclusion that the plain purpose of the proviso is that only one action of any kind shall be brought on account of the same death. To hold that a man may recover in an action as a father, and immediately clothe himself with the attributes of an administrator and recover again, would be to pervert the beneficent principles of the law into a system of wrong and oppression.
If .the parents had chosen to waive their right in the first instance and allow the administrator to sue, and he had sued, recovered judgment, and collected it, it would scarcely be contended that he could take out letters again, or, on the same letters, bring another suit and recover. Neither can the same person, by simply changing his designation from father to administrator, recover again. Having had the option at first to sue in
An inspection of the record show's that in each action (the former suit and this one) some of the counts in the complaint are on the common-law liability and some on the Employer’s Liability Statute.
The only assignment of error in this case is to the overruling of plaintiff’s demurrers to defendant’s plea “1-A.” The plea Avas certainly good as to some of the counts of the complaint. Under such an assignment, “the decree wall be referred to the cause of demurrer which Avill support it, and not to those which would render it erroneous, working a reversal.” Therefore the .assignment cannot be sustained. — Western Railway of Alabama v. Arnett, 137 Ala. 414, 425, 34 South. 997; McDonald, et al. v. Pearson, 114 Ala. 630, 641, 21 South. 534; Aetna Insurance Co. v. Lasseter, 153 Ala. 630, 631, 45 South. 166, 5 L. R. A. (N. S.) 252; Richard, et al. v. Steiner Bros., 152 Ala. 303-305, 44 South. 562.
The judgment of the court is affirmed.
Affirmed.
Concurrence Opinion
— I concur in the affirmance of this case, but for reasons different from those expressed in the majority opinion.
At common law, as is well known, no civil action would lie for a wrongful death. We now have, and have had for a great number of years, íavo and only two statutes, each authorizing an action for wrongful death —one known as the Homicide Statute (Code, §§ 2485, 2486), and the other as the Employer’s Liability Act (Code, §§ 3019-3912).
Thus it appears that each statute has an entirely separate and distinct field and scope of operation; the one authorizing a recovery when and only when the deceased could have maintained a common-law action for the wrongful act had death not resulted; the other, when and only when the deceased conld have maintained the statutory action under the Employer’s Liability Act had death not resulted.
It was evidently never intended that there should be two separate and distinct actions against the same defendant, for the same wrongful death. The latter statute was intended to reach, and did reach, cases which were not reached by the Homicide Statute.
It is possible that in some cases there might be a recovery against the same defendant under either statute, but certainly not under both — any more than there could be two recoveries by the deceased, for the same injury, had death not intervened. It may be that a servant can recover either at common law or under the statute for the same injury, but certainly he cannot recover under both for the same injury. For the same reason, there cannot be 'two recoveries in case the injury produces death.
Another source of confusion has resulted from the fact that under the Homicide Statute, if the deceased was a minor, the action is authorized to be brought either by the parent, under certain conditions, or by the personal representative; while under the Employer’s Act the action could be brought by the personal representative only. But the statutes, one or both, have never authorized two recoveries — one by the parent and one by the personal representative, though both could
Suppose the parent sue under the Homicide Statute —which is the only one he can sue under — and recover: This will be a bar to an action by the administrator, for the reason that the parent’s action could be defended by showing liability only under the Employer’s Act, under which the parent cannot sue; but, if the parent fail, it is not a bar to an action under the Employer’s Act, for the reason that it might have been shown that if there was liability it was under the Employer’s Act, and not under the Homicide Act, which alone authorizes the parent to sue.
It would probably be well to authorize the parent to sue under the Employer’s Act just as he is authorized to sue under the Homicide Act, which would remove this trouble; but this is a question for the Legislature and not for the court.
The Homicide Statute expressly makes an action by either the parent or the personal representative a bar to another action by any one of them under either section of the Homicide Statute. It was unnecessary to make an action by the parent a bar to an action under the Employer’s Act, for the reason that the parent could not sue under that act.
Brother Simpson is of the opinion that section 2485 of the Code confers a separate and distinct right of ac
For the same reason, it seems that there ought not to be two recoveries for the same wrongful death, even though there might-be a recovery under either the Homicide or the Employer’s Statute.
I concede that I can see no sufficient reason Avhy the damages should be punitive under one statute, and compensatory under the other, nor why the parent
Dissenting Opinion
(dissenting.) — The single, assignment of error is interpreted as imputing unseparated error to the trial court in overruling plaintiff’s demurrer to plea 1-A, which was addressed to each count of the amended complaint, separately and severally. The demurrer assailed the plea (1-A) as an answer to each count, separately and severally. The judgment entry recites that “the demurrers to plea 1-A to the complaint as amended and to each count thereof are by the court heard and considered, whereupon, it is ordered and adjudged by the court that the said demurrers be and they are hereby overruled.”
The court holds that, in order to sustain the assignment of error, there must have been error in overruling the demurrers to the plea (1JA) as an answer to each and every count of the amended complaint; in other words, the plea (1-A) must have been insufficient as an answer to each and every count of the complaint as amended.
The cases cited are not in point. That of Western Railway of Alabama v. Arnett and that of Aetna Insurance Company v. Lasseter concerned an unseparated assignment of error as upon rulings on demurrers to distinct pleas and to distinct replications, respectively. —McDonald v. Pearson and Richard v. Steiner concerned the accepted practice of referring, on appeal, a decree on demurrer to a bill in equity to such ground or grounds thereof as will sustain the decree. Here the appellant avers in his assignment of error that the trial court erred in overruling his demurrer. It would seem to be certain that, if the plea, addressed to the counts,
As to the substantive law of the case: If I understand what the ruling of the majority is, my views are not in entire accord therewith. If it is ruled that an action by the parent, as authorized by Code, § 2485, will bar an action or a recovery by the personal representative, under Code, § 3912, for the death of an intestate (minor) 'which resulted from injury received within the purview of the Employer’s Liability Act (Code, § 3910 et seq), it appears clear to me that the process of attaining that conclusion removes, withont warrant, from Code, § 2485, the words therein whereby the bar prescribed is expressly limited to suits under that and the succeeding sections, viz., 2485 and 2486. The recoverable damages under sections 2485 and 2486 are punitive only (L. & N. R. R. Co. v. Bogue, 177 Ala. 349, 58 south. 392); and those recoverable under the Liability Act (Code, § 3910 et seq.) are compensatory only. The parent cannot maintain an action under the Liability Act for the death of the child. The right thereunder is committed to the personal representative alone. — Code, § 3912; Lovell v. DeBardelaben Co., 90 Ala. 13, 7 South. 756. Aside from the express restriction of the provision for a bar, in section 2485, to suits under that and the succeeding section (2486), which ought to be conclusive, the Legislature would be put in a wholly irrational attitude if it is finally held that the exercise by the parent of his or her right to site for the death of the minor child (who was, also, an employee) bars suit, by the personal representative, under the Employer’s Liability Act. The result would be that, without the re
The distinction between punitive damages and compensatory damages is universally recognized. The recovery of one does not include the other. To allow the parent to recover punitive damages for the wrongful death of the child is obviously a distinct matter from the recovery of compensatory damages by the personal representative. By section 2485 the parent is given the first right, to be exercised in six months, to bring his or her action for the wrongful death of the child under sections 2485 and 2486. Before the expiration of six months the personal representative cannot maintain a suit for the wrongful death of a minor under sections 2485 and 2486. If the personal representative should institute his action under those sections (2485 and 2486), his complaint, if predicated alone upon those sections, could be abated on seasonable plea to that end; or, if he includes with counts under the Employer’s Liability Act a count or counts not under the Liability Act, they would be likewise subject to abatement. After six months the stated right of the parent ceases, and the personal representative’s rights to sue for the wrongful death and under the Liability Act merge, and he may join in his complaint counts asserting the right to recover, for the death of the minor employee, under both the Homicide Act and the Liability Act; or he may rest his action alone on the right given by the sections 2485 and 2486.
Here the parent exercised his right to sue for the death of the minor child. His recovery could rightfully
The distinction between a suit by an individual, and one by even the same person in a representative capacity only, is too well grounded and accepted to admit of a confusion thereof. So that, in this case, where the parent instituted his action within six months, and recovered for the wrongful death of his minor child, the personal representative is restricted in his right to the action authorized by the Liability Act.
To those counts of the personal representative’s action not declaring under the Liability Act, plea 1-A was a good answer; but to those brought under the Liability Act plea 1-A was not an answer.