South & North Alabama Railroad v. Sullivan, 59 Ala. 272

59 Ala. 272 | Ala. | 1877

Lead Opinion

STONE, J.—

Under the principles declared in Savannah and Memphis Railroad Comppany v. Shearer, 58 Ala. 672, a good and substantial cause of action is averred and shown against the defendant corporation. The question is,, in whom is the right of action ? In whose name should the suit be brought ? The decedent, intestate, was, at the time of her death, a married woman, and the action was brought in the name of her administrator.

Commenting on the act “ to prevent homicides,” of February 5, 1872, Pamph. Acts 83, we, in Savannah and Memphis Railroad Company v. Shearer, said, in effect, that the purpose and result of the suit therein provided were not a mere solatium to the wounded feelings of surviving relations, nor compensation for the last earnings of the slain. We think the statute has a wider aim and scope. It is punitive in its purposes. Punitive of the person or corporation by which the wrong is done, to stimulate diligence and to check violence, in order thereby to give greater security to human life; “to prevent homicides.” And it is none the less punitive because of the direction the statute gives to the damages recovered. The damages, ’tis true, go to the estate of the party slain, and, in effect, are compensatory; but this does not change the great purpose of the statute—“ to prevent homicides.” Preservation of life—prevention of its destruction by the wrongful acts or omission of another,—is the subject of the statute; and all its provisions are but machinery for carrying it into effect.

To whom does the compensation go ? Not to the husband, wife or child. The statute contains no provision that the recovery shall go to these. It shall be “ distributed as personal property of an intestate is now distributed.” That is, it goes to the estate of the decedent, with the limitation, that the fund “shall not be subject to the payment of the debts of the deceased.” Ve say it goes to the estate of decedent, for otherwise this limitation would not be necessary. Only the property belonging to estates of decedents is “ subject to the payment of” their debts.—Dibble v. N. Y. & Erie R. R. Co. 25 Barb. 183.

The language of thé statute is, “ when the death of a person is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action.” This statute contains no qualifying clauses, limiting its remedial provisions to any class or classes .of persons, or excluding any class from its wholesome terms. It employs the word person in its broadest sense, and it would seem that every being falling within that general designation may take shelter under its protecting wings.

The statute declares that “ the amount so recovered shall be distributed as personal property of an intestate now is distributed.” The plain meaning of this is, that the amount recovered in such action shall go in distribution to the persons, and in the proportion as personal property of the deceased would go, if he or she died intestate. Under our statutes, ample direction is given for the distribution of the personal property of married women who die intestate. Code of Ala. §§ 2252, 2261, 2714. This provision of the statute can not be carried out, unless we allow the personal representative of the person whose death was caused by the “ wrongful act or omission of another,” to bring the suit. The statute creates the right—a right unknown to the common law—and provides a remedy. No other remedy can be pursued. Hence, if we hold that the personal representative of a married woman can not maintain an action under this statute, we deny all redress for the killing of married women by the wrongful act or omission of another. And we also fail, in such cases, to give any operation to the clause of the statute which directs that “ the amount so recovered shall be distributed as personal property of an intestate is now distributed.” We do not feel at liberty to deny, in cases which may occur frequently, all operation to so important a clause as that we are commenting on;'or to withhold from married women and their distributees, all benefit under this most wholesome statute.

It seems to us that our modern policy, called the married woman’s law, should exert some influence in the interpretation of this statute. Under the common law, all the personal property which belonged to the wife at her marriage, or which accrued to her during the coverture, could be reduced to possession by the husband, and thereby became his. It followed that a transmission of personal property by a decedent wife, was scarcely known. Under this rule, a suit for an injury done the wife must be prosecuted in the joint names of husband and wife, because the damages, when recovered, would belong to the husband. Not so under the woman’s law. “ All property of the wife, held by her previous to the marriage, or which she may become entitled to after the marriage, in any manner, is the separate estate of the wife.”—Code of Ala. § 2705. This was the law of this State when the act “to prevent homicides” was passed.

"We think that in the enactment of the statute of February 5,1872, the legislature meant what they said, “ that when the death of a person is caused by the wrongful act or omission of another, the personal representative . of the former may maintain an action” therefor, whether the decedent was sui juris or not. In the case of Dickens v. N. Y. Cen. R. R. Co., the administrator of a married woman was allowed to maintain an action for her death, caused by the negligence of defendant. Justice Denio, delivered the opinion of the Court.—23 N. Y. 158; see Sanford v. Augusta, 22 Maine, 536; Eden v. Lex. & Pr. R. R. Co. 14 B. Monroe, 204; Mc-Kinney v. Western Stage Co. 4 Clarke, Iowa, 420; Williams v. Haldredge, 22 Barb. 396; Gunn v. Hudson R. R. 41 N. Y. (Keyes) 294; Railroad v. Whitten, 13 Wall. 270.

In the act under discussion, the right to maintain an action in the name of the personal representative of a person whose .death was “ caused by the wrongful act or omission of another,” is limited to cases in which an action could have been maintained by the decedent, if living, for the same act or omission. It is here contended that the wife, if living, could not have maintained an action in her own name, without joining her husband as co-plaintiff, and that her personal representative can not sue. We do not think this is either the object or sense of the clause referred to. The language, “ if the former could have maintained an action against the latter for the same act or omission, had it failed to produce death,” was intended to declare the character of act or omission which would support the action;. not the person by whom it could be maintained. That had already been provided for in the declaration that the personal representative should sue.

What we have said above, taking in connection with our rulings in Tanner v. Louisville and Nashville Railroad Company, and Savannah and Memphis Railroad Company v. Shearer, at the present term, shows conclusively that the court did not err, to the prejudice of appellant, in the several rulings on demurrer.

There are a few decisions which recognize the doctrine of comparative negligence in suits like this.—See Chicago and R. I. Railroad Co. v. Still, 19 Ill. 499; Chicago B. & Q. R. R. Co. v. Payne, 49 Ill. 499; Ill. Cen. R. R. Co. v. Bucher, 55 Ill. 379. But we do not recognize that doctrine as sound. In one part of the general charge, the Circuit Court spoke of comparative negligence; but the exception to that charge was general, while the charge itself was given in connection with other matter that was free from objection. In such case we will not sift the charge, with a view of ascertaining if some portion of it does not .assert an erroneous proposition.

The charges requested were all properly refused.—See Tanner v. Louisville and Nashville R. R. Co. at present term; see Dennis v. N. Y. Cen. & H. R. Railroad Co. 47 N. Y. 400.

The release of James Hughes, husband of intestate, is no bar to this action.—See Stewart v. Kissam, 2 Barb. Sup. Ct. 493. What effect it may have on his distributive interest in the settlement of his wife’s estate, is not for us, at this time, to say.

Judgment affirmed.

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Rehearing

On application for a rehearing, the following opinion was afterwards delivered:

Per Curiam.—

We do not, at all, deny that in cases like the present, when the plaintiff has contributed proximately to the injury of which he complains, and there is nothing else in the transaction, there can be no recovery. We will not enter into the inquiry of comparative negligence. On the other hand, we maintain, with inflexible purpose, the general doctrine we declared in Tanner v. The Louisville & Nashville Railroad Co., that primary negligence of one party does not absolve the other from continued diligence, even to the last moment of time, when the catastrophe may be averted. We intended to decide, and now repeat it, that if one, by his-own negligence, put himself in peril—yet, if the party sought to be charged, after discovering the peril, or, after being placed in a condition where, if diligent, he would have discovered the peril in time to avert the catastrophe, fails to exert proper diligence, which, if exerted, would probably prevent the disaster, this is culpable negligence, to which the primary negligence of the plaintiff is but remotely contributory. We asserted, and again assert, that if those in-charge of a train, engaged in the business of switching cars, within a city, where people are constantly passing, back the train, having box cars in front of the engine, so as to conceal the track on which the train is moving, from the view of those having charge of it, and have no watchman or employee on or near the train to look ahead, and, if need be, to warn persons of the approaching danger, or have the train stopped ; and if injury to any person be thereby inflicted, this is, per se, negligence, for which an action will lie, unless the party injured, after discovering his peril, fail to use proper’ exertions to extricate himself therefrom. If he did so fail, this would be proximate, contributory negligence, which would deprive him of all right to recover.

We are aware that some adjudged cases hold the converse of this proposition; and many, perhaps a majority of them, state the proposition broadly, without drawing the distinction which we have attempted. Perhaps the distinction was-unnecessary in those cases. But whether so or not, we adhere to our views, and decline to follow cases that assert the contrary doctrine. We do not, in this, intend to declare a rule that is stricter, or less strict, than that declared in Tanner v. L. & N. R. R. Co. supra.

And we adhere to our construction of the act “ to prevent homicides,” and the right of the personal representative of a married woman to maintain the action therein provided. Any other construction would leave no remedy whatever,. when the person whose death was “ caused by the wrongful act or omission of another,” was a married woman. The right and remedy are the creatures of the statute; no common law action could have been maintained in such a case; and the rule in such cases is, that only the action which the statute provides will lie.

The application for a rehearing is overruled.