*1 Part, Pocket Cum. Code pp. 78-81. presented for our question
No except regularity consideration in the court shown
proceedings lower appearing in this error No record.
connection, of conviction appeal will was taken stand
from which
affirmed.
Affirmed. LIVINGSTON, J., and C. LAWSON STAKELY, JJ., concur.
73 So.2d v. SHIRLEY.
SHIRLEY
Supreme Alabama. Court of
Feb. May
Rehearing Denied *3 appellant. Eufaula, for
Chauncey Sparks, Wallace, Clayton, Archie I. W. Jack Eufaula, appellee.
Grubb, on claims actions sort survive the tortfeasor, except death of defendant injuries reputation. to the Section 7, provided a re- then and now for vival the action. That section therefore did then include causes action on Wynn which no suit had been instituted. Tallapoosa Bank, County 490-493,53 So. 228 .
The instant suit is virtue of section *4 119, supra, 123, and not section Title 7. The latter section has continued to contain provision a that when a begun suit has been it by defendant, is not abated death of may be against personal but revived his representative. parent Section 119 (by the of a deceased child) minor has never had prior that in clause it. But to the amend- by 1951, ment of section Act of supra, question in a arose suit under sec- tion 119. After a full review of the au- thorities and a careful consideration of the statutes, Court, justices with all the concurring, held that section 150 authorized a of a pending revival action under section when the defendant tort-feasor had parte Corder, 694, Ex died. 222 Ala. So. 130. holding
This not thought to have way been in the of later that a decision a brought 121, 7, suit under section Title against personal representative person liable justified by under it was not 122, 7, section although Title that statute provided then, now, as it does for the sur- vival of the cause section action under of PER CURIAM. At that time there was statute by This a is a suit mother for the wanton which authorized survival of a cause of death by of her minor child caused another against action a tortfeasor under section minor who died the same accident two by 123. It thought or the Court or after plaintiff’s three hours the death of provision of section 122 for the intestate. “right survival of action” there re- ferred cases where the or tortfeasor by 119, section The suit is authorized Ti- injured party had died from some cause if the cause of action tle of the Code sur- than other sued on and where liv- intestate vived the death defendant’s un- just against had had a demand the liv- provisions (No. 737) of the Act der the ing. French, Webb v. 152 So. 43, 5, 1951, September approved General Acts 1290, 150, 1951, which amended page section 7, Title Code. Corder, supra, parte Ex was an action Prior that amendment the cause of under section 119 as well as a ac- minor, not have father wrongfully would survived since sec- tion action 7, existed, killed, 150, living person it against as then made who caused
ÍOá
all
causes of action
cation
actions and
death,
on the death of
held that
his
and we
But
actions
otherwise
was not
controlled.
the action
defendant tortfeasor
121 are
under section
personal rep- and causes
action
properly
against
revived
interpreted in
150,
supra,
section
as
controlled
virtue
section
resentative
supra.
French,
There
was no er-
Webb
stood.
as
then
holding.
the trial court in so
ror
prior
to the amendment
So
(5712)
had
that section 150
supra, we
held
appellant argues that
Counsel for
119, supra, and was sub-
section
applied to
the evidence is
sufficient to show
(5715).
section 153
ject to revival under
defendant’s intestate
caused the
primarily
provision
section is
The latter
intestate,
required
death
defendant
a revival when
alleged
guest statute and
com
150, before
pending the suit. Section
dies
plaint.
Code. This
Section
with the matter
had to do
Act of
theory
made
insistence is first
on
an
after the death
the survival of
plain
the evidence
not sustain
when
does
amending
party.
Act of
right
a judgment
tiff’s
the court should
all causes
applies
terms to
section
render a
for defendant notwith
*5
actions,
excepting
as
still
action well
as
standing
submitting
the verdict or without
reputation.
no rea-
We see
injuries
to
jury.
principle
the case to the
But this
as
why
section 150
we should hold that
son
only applies
complaint
when the
does not
119,
apply
section
su-
not
to
does
amended
Likewise,
judg
a
of action.
a
state
amended,
as for that
was
or
pra, as before it
plaintiff may
ment for
rendered when
be
123,
here involved.
not
to section
matter
plea
only
there is no
of merit
but
issue
application
limit
to
willing
its
not
to
We are
pleas.
is one taken on immaterial
Nation
person
living
a
has a
where
a situation
Bank,
Surety
First
al
Co. v.
National
225
injury against an-
personal
for
claim
108,
414; City
Ala.
142
of Birmingham
So.
121,supra.
by
person as
section
living
other
Andrews,
362,
877;
222
v.
132 So.
121,
123,
do
section
unlike
119 and
Sections
7,
Code, Title
for an
action
provide a cause of
not
In Webb v.
causing death.
injury not
When the evidence is finished and
dealing with
French,
supra,
court
plaintiff
any proof
has failed to make
damages
121,
provided
law,
a
section
all the essential features of his cause of
causing death.
injuries not
for
prejudicial
action it is not
for
error
court,
request
without a written
requir
as
section
injury caused death
If the
by
270,
7, Code,
ed
section
to direct
justify.
the facts
as
must be used
123
a verdict for defendant. O’Bar v. South
by law
created
of course be
might
There
Co.,
ern Life & Health Ins.
proceeding
on
yards beyond
point where the
point
two
where
highway toward
rolling
rest
car came to
after
over
occurred.
accident
body
approxi-
girl’s
was thrown
testimony
Ruth
showed that
“The
that distance.
mately one-third
college
and was
Shirley was
student
n boy,
Shirley,
was
Jr.,
Clarence Ladell
years
age on the date
nineteen
instantly
girl
some
killed
and the
died
frequently
accident and
she
later.”
or three hours
two
boy’s
invited
by the
home and
came
boy
her, however,
ride
him to
with
and find
have read the
We
record
driving
car when
never seen
was
it
supports
counsel
the statements
and,
fact,
was
Ruth
there
out with
except
indi
respective briefs
in their
testimony
had ever
show that
he
think this evidence shows
cated. We
any
driving
automobile.
been seen
justified
inferring, not
was
further
showed
testimony
by de
presuming, that the car was driven
Shirley
driver
a licensed
at a
excessive
fendant’s intestate
Shirley, Jr.,
Ladell
whereas Clarence
speed
manner
and in a
which
rate
drivers license.
did not have a
obviously dangerous,
proximate cause of the
and death
accident
last seen
“After the automobile was
Hackley
plaintiff’s minor child.
Clayton
Mid-
toward
proceeding
Robey,
grade speed causing the excessive and the proven by be evidence, circumstantial but properly go wreck. It was held to the those proven by circumstances must be di Harper aon wanton count. In the rect evidence. One ultimate facts cases, supra, there evidence of de- was no in this case was that brakes, fective known to the driver. That driving the car that caused the death of the important difference was an one. boy. That could be inferred from the cir cumstances that the car was owned her Appellant insists that his motion to strike father; frequently it; that she drove complaint certain words from the should *8 license; she had a boy driver’s that the did excepted have been sustained and to the ac- have; not frequently she took him tion of the court in it. overruling Those car, with her in always the and that she words are as follows: it; drove that he was never known to it; Shirley drive they Clayton, “M. D. owned an automobile that when left start operation trip which he ing intrusted to the on this a few minutes before the accident, management and of the said Ruth she driving. All of those pleasure proven date for her by on said circumstances were direct evi pleasure any and for the of others that dence. There was also direct evidence as speed invite in auto- she cared to to ride said the to of the car at the time of day accident, and that on Au- physical mobile the 3rd of the and the conditions gust, immediately 1952”. following accident, the to gether with lay the condition and of the place accident,
That is a statement of evi at the approach road did, by they material for beyond matter consideration it as and place dential the of dependent jury determining in an issue the accident. evi- PER CURIAM. know from we do not While leaving the car cause of dence the exact Appellant’s takes us to counsel turning several roadway over paved and assignment responding for not to his finding in task times, jury justified cause, sufficiency plea his of con specific going to the been the have whatever right tributory in as proxi- negligence. He was place a speed at such the excessive suming respond to it be a that we did not Driving result. mately produced that only wanton count was one per could hour miles hundred car at one ness, contributory negligence is to which almost accident at reasonably produce an ordinarily applicable. argu not But proximate cause of place any as a time or statutory (a) (the is this action is ment it. requires plaintiff statute), to guest misconduct, Objection made to or willful prove wanton driving support when the car sufficient negligence is not to proof that claim, contributory Clayton. preced negligence occurred they What left —therefore accident, only speed available as a defense to the sort such is ing the admissibility on agree We cannot car, etc., depends for its authorized. usually admis reasoning. It is When statute each case. with the facts of wantonness, issue requires material to the willfullness or it does be found to sible when place. change principles apply in time or which too remote not not and is Adair, 150(12), an action and does not create the de such v. Townsend contributory negligence which is fense So. 637. applicable to a count of that nature charge clear judge gave The trial under other circumstances. and bur- to them the issues explaining gave many special proof, and den (b) contributory argued It is also that the We see requested defendant. charges negligence alleged plea is an tending to create the record nothing in beneficiary is the of the ac- atmosphere in court hostile unfair or tion, negligence her “a occurred trial, which pendency of the nor during the long time before the accident and was not new grant the motion for a requires tous accident,” that, part of the she let the trial, the court. was refused driver, incompetent ride an child with such, to her be known and took risk unnecessary each to discuss We think “by any injury of its negligence”. kind of argued appellant assignment of error “any neg- But wantonness is not kind of considera- given careful We have brief. ligence”. They very denote different con- and find no reversible all them cepts. only Wantonness neg- exists when should be affirmed. error. ligence is absent. & Louisville Nashville prepared foregoing opinion was Markee, R. Co. R. 15 So. Foster, Supernumerary Justice 511; Louisville & Nashville R. R. Co. request it at the Court, serving on while Perkins, 138(3), So. authority of under of the -Chief Justice 32, Code, adopted and was negligence It true that opinion. its the Court parent under suing section *9 Code, good is a defense an to action Affirmed. parent charging causing negligence the death a minor McGough child. SIMPSON, J., and LIVINGSTON, C. Reynolds, 592, Corp. Bakeries v. 250 Ala. MERRILL, STAKELY, GOODWYN 332; Peoples Seamon, 35 So.2d v. JJ., concur. 284, 88; 31 So.2d Alabama Utilities Service Hammond, 822; 657, v.
Co.
So.
Stogne;,
Alabama Power Co. v.
208 Ala.
LAWSON, J., dissents.
151;
666, 95 So.
Alabama Great Southern
Dobbs,
219,
770,
Application
Rehearing
R. R. Co. v.
101 Ala.
for
So.
On
ought
do,
they
In
Dobbs case it is observed
to
and then
something
contributory
ap-
they
negligence
example
as to
principle of
make themselves an
reck-
injury “which is not
deter
plies only to an
or restrain others
the commis-
from
intentionally
lessly, wantonly or
inflicted”.
sion of
kind of conduct.”
stat-
interpret
excerpt
case under the same
That was a death
We do not
will
negligence
exception
that such
charge,
ute.
It was said
from the oral
which
damages
reserved,
him
recovering
damages
from
as
preclude
authorizing
company
killing
punish
charged
the railroad
for
from
the deceased
with
upon the railroad
gone
plaintiff’s
child who had
killing
being
child. But
she
tracks,
company
dead,
the railroad
is
damages
pur
unless
are for the
awarded
simple negligence. pose
than
guilty
similarly
of more
deterring
others
situated
plain-
for
taking steps
The court affirmed
of that character. That
supported
finding that the evidence
proper
tiff on
is a
view of the nature
the dam
guilty
claimed,
of ages
a verdict
defendant
fixation
a sum which
—the
simple negligence notwithstand-
tendency
prevent
more than
will
have
homi
such
contributory
negligence.
Atlanta,
Co.,
Breed
cides.
B. & C. R.
&
principle
642,
is stated in Missouri K.
640(4),
same
wanton the law against person be assessed LIVINGSTON, J., SIMPSON;.’ C. injury punishment caused that to the STAKELY, MERRILL, GOODWYN and *. it, person happens who did if she to be JJ-, concur. living dead, if she be purpose for the similarly deterring others situated from taking steps LAWSON, character. It J., dissents.