Peoples v. Seamon

• Citation: 31 So.2d 88,249 Ala. 284
• Decision Date: 19 June 1947
• Docket Number: 3 Div. 468.
• Parties: PEOPLES et al. v. SEAMON.
• Court: Alabama Supreme Court

31 So.2d 88

249 Ala. 284

PEOPLES et al. v. SEAMON.

3 Div. 468.

Supreme Court of Alabama

June 19, 1947

Steiner Crum & Weil and Sam Rice Baker, all of Montgomery, for appellants.

Hill, Hill, Whiting & Rives, of Montgomery, for appellee.

FOSTER, Justice.

This is an action for the death of a minor child brought by the administrator of his estate. The complaint does not allege whether the child left a parent surviving.

The defendant plead (No. 3) that Leonard E. Seamon (who is the administrator suing as plaintiff) is the father of the said child, and that at the time of the accident, for which suit is brought, he, said Leonard E. Seamon, the father, was guilty of negligence in caring for said child, which negligence proximately contributed to his injury and death.

Plaintiff demurred on three grounds. The first was general; the second and third raised the point that in a suit by the administrator, the negligence of the father is not available as a defense. The court sustained that demurrer and the ruling is assigned as error.

The plea, by the facts alleged, makes setion 119, Title 7, Code applicable as the basis of plaintiff's action rather than section 123, Title 7. It was brought, as alleged in the plea by the father as administrator of the estate of the minor and within six months. But that is immaterial. Alabama Fuel & Iron Co. v. Denson, 208 Ala. 337, 94 So. 311; McWhorter Transfer Co. v. Peek, 232 Ala. 143, 167 So. 291.

When a minor child is killed by the wrongful act of another, and he leaves surviving his father, the damages recoverable are for the benefit of the father, where the suit is by the father personally or by an administrator, Tennessee Coal, Iron & R. Co. v. Herndon, 100 Ala. 451, 14 So. 287; White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A.,N.S., 568; City of Birmingham v. Crane, 175 Ala. 90, 56 So. 723; Ex parte Corder, 222 Ala. 694, 134 So. 130; Benson v. Robinson, 223 Ala. 85, 134 So. 799; McWhorter Transfer Co. v. Peek, supra, unless the father has by desertion or disability ceased to perform the parental duty of maintenance, or become disqualified (section 118, Title 7, Code), as when the minor child has married and been emancipated. McWhorter Transfer Co. v. Peek, supra. It was said in Louisville & Nashville R. R. v. Bogue, 177 Ala. 349, 360, 58 So. 392, 393, 396: 'As now reconstructed in the new Code, it (now substantially as in section 119, supra), is evidently designed to furnish a complete system for all actions for the death of a minor child,' meaning when a parent survived.

Those cases also hold that if the suit is by the administrator of the minor leaving a father in the exercise of parental care, he is acting as a quasi trustee for the father, and the recovery is not for the estate of the child nor his distributees. Therefore if the deceased child leaves such a parent, the suit is controlled entirely by section 119, supra, and section 123, supra, has no application. There is nothing in the case of Taylor v. City of Clanton, 245 Ala. 671, 18 So.2d 369, which is intended to conflict with the foregoing authorities.

Our cases hold that in a suit by the parent in his capacity as such under section 119, supra, his contributory negligence is a good defense. Alabama Utilities Service Co. v. Hammond, 225 Ala. 657, 144 So. 822; Alabama Power Co. v. Stogner, 208 Ala. 666, 95 So. 151; Alabama G. S. R. Co. v. Dobbs, 101 Ala. 219, 12 So. 770.

In the case of Alabama G. S. R. Co. v. Burgess, 116 Ala. 509, 22 So. 913, the suit was by the administrator for the death of an infant, and was said to be under section 2589, Code of 1886 (section 123, Title 7, Code of 1940). It was said that the negligence of the parent would not be available as a defense, but it would be available in a suit by the parent under section 2588 of that Code (section 119, Title 7, Code of 1940).

In that case no emphasis is made of the fact that the administrator was the father of the infant or whether the suit was under one or the other statute. But it seemed to imply that a suit by the administrator was not available under section 2588, Code of 1886, though it was otherwise provided.

In the case of Southern Railway Co. v. Shipp, Adm'r, 169 Ala. 327, 53 So. 150, the opinion starts by stating that the suit is by the administrator under the homicide statute to recover damages for the death of plaintiff's intestate who was his minor son. It is stated (169 Ala. at page 333, 53 So. 150) that the action is not for the benefit of the father but for the distributees of the estate, of whom the father may be one. It is said (169 Ala. at page 334, 53 So. 150) that a parent who brings an action in his own right for the death of his intestate will not be allowed to recover if his own negligence contributed to his death; and the statute, referring to section 2486, Code of 1907 (section 123, Title 7, Code of 1940), gives the administrator the same right of action that the infant would have had if death had not resulted. That provision was not in section 2485, Code of 1907 (section 119, Title 7, Code of 1940), but was in section 2486 (section 123, Title 7, Code). And further that since contributory negligence of the parent would not defeat a suit by the infant had death not resulted, it is not a bar to an action under that statute, section 2486, Code of 1907. Provision was made for a suit to be brought by the administrator under section 2485, Code of 1907, as under section 119, Title 7, Code, but that suit was treated as being under section 2486 (section 123, Title 7, now). This Court had previously held that a suit under section 26, Code of 1896 (2485, Code of 1907; 5695, Code of 1923; section 119, Title 7, Code of 1940), by an administrator is wholly for the parent's benefit, and the appointment of an administrator is a statutory designation or appointment of a quasi trustee to sue for damages belonging to the parent. White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A.,N.S., 568. This authority was cited to support that principle in City of Birmingham v. Crane, 175 Ala. 90, 56 So. 723: although it was also there said, citing the Shipp case, supra, that when the suit is by the administrator of a minor whose parent was living, the negligence of the parent was not a good defense.

In the case of Benson v. Robinson, 223 Ala. 85, 134 So. 799, a suit was instituted by the father necessarily under section 5695, Code of 1923 (section 119, Title 7, Code), and we held that the court correctly refused to allow an amendment to show that he sues as administrator, because thereby there was no effectual change in plaintiff's status, since in either event the recovery was for the sole benefit of the father, relying on White v. Ward, supra, and Tennessee Coal, Iron & R. R. v. Herndon, supra.

Both sections 119 and 123, Title 7, Code, as did their predecessors, authorize suit by the administrator. But it is not available for the administrator to select either section 119 or 123 as the basis of his right of action. Both statutes cannot apply to the same situation with the right of plaintiff to select one or the other as he sees fit. State v. Summer, 248 Ala. 545, 28 So.2d 565; Patterson v. Jefferson County, 238 Ala. 442, 191 So. 681.

We adhere to the principle stated in our cases that when the death of a minor is wrongfully caused, and he leaves a parent surviving, who is not disqualified under section 118, section 119, and not section 123, supra, has application, and the damages recoverable are solely for the benefit of that parent, who may sue in his own name, or if he becomes administrator may sue as such for his sole benefit.

We cannot adhere to the theory that a father by electing to be administrator, or causing another to be administrator, and suing as such, rather than as the parent under section 119, supra, his contributory negligence is no defense, whereas it would be a defense in a suit by the parent personally, when the damages recoverable by such administrator would belong to such parent solely to the same extent as if the suit were by him personally.

The case of City of Birmingham v. Crane, supra, has not been followed on that question in such a situation, and we think did not correctly apply the principle of contributory negligence. The earlier cases proceeded as under section 123, rather than 119, supra, when there was an administrator, even though a parent survived the death of the child. Our later cases have not followed that theory, and the result is that when a parent survives and is qualified, section 119 is the only available statute, and the recovery is solely for the benefit of that parent, and his contributory negligence precludes a recovery by him or for his sole benefit.

The demurrer to plea 3 should not have been sustained, and for doing so it is necessary to reverse the judgment.

We could stop this opinion here, but for the purpose of another trial, we will refer to some other contentions made by appellant.

The suit is against Edwards and Peoples, and in two counts. Count 1 alleges that the defendants were engaged in the business of operating an automobile on Finley Avenue, a public street in Montgomery. Count 2 alleges that defendant Edwards, the agent, servant or employee of defendant Peoples, was in charge and control of an automobile on said Finley Avenue.

Appellant contends that the situation disclosed does not prove either count 1 or 2, but shows that Edwards was a lessee under a verbal lease sale contract of the taxi and operating it for himself not as an agent of Peoples nor as a joint adventurer with him.

The evidence shows that Peoples had owned the automobile and had used it as a taxi and had a city license as such. That the city had adopted a rule that they would not transfer an existing...