Adkison v. Adkison

• Decision Date: 11 March 1970
• Docket Number: 4 Div. 17
• Citation: 239 So.2d 555,46 Ala.App. 191
• Parties: Hollan S. ADKISON v. Theresa ADKISON.
• Court: Alabama Court of Civil Appeals

Page 555

239 So.2d 555

46 Ala.App. 191

Hollan S. ADKISON v. Theresa ADKISON.

4 Div. 17.

Court of Civil Appeals of Alabama.

March 11, 1970.

Rehearing Denied March 25, 1970.

Order After Remandment Aug. 4, 1970.

Farmer & Farmer, Dothan, for appellant.

L. A. Farmer, Jr., J. R. Herring, Dothan, for appellee.

BRADLEY, Judge.

The appellee in this case filed a bill of complaint in the Circuit Court of Houston County, Alabama, in Equity, seeking a declaration by said court that she was entitled to maintain an action for the wrongful death of her minor son and that she was likewise entitled to the benefits received from the prosecution of such a cause of action or settlement of said claim for damages.

Appellant filed an answer to the complaint, and the matter was heard ore tenus by the court sitting without a jury.

At the conclusion of the hearing, the court rendered a decree in which it decided that the appellant-father was not disqualified to maintain an action for the wrongful death of his minor son, but that any damages resulting from such an action or the benefits of any settlement made in lieu of further prosecution of the cause of action, would be divided equally between the father and mother of said deceased minor son.

From that part of the decree awarding appellee one-half of the damages resulting from a settlement of the action for the wrongful death of the deceased minor son, appellant appeals to this court.

There were six assignments of error, four of which questioned the award of one-half of the settlement for the deceased minor son being given to the appellee, and two of which questioned the admission of certain evidence during the trial.

The pleadings and testimony heard orally by the court revealed that the appellant and appellee had been husband and wife until February 7, 1965, when they separated. There were two minor sons resulting from this marriage, and they remained with the mother after the separation.

In July 1965 the Law and Equity Court of Houston County, Alabama entered a temporary decree requiring the father to make child support payments to the court in the amount of $100.00 per month for the two children. He was also required to pay the utility bills.

This arrangement lasted until July 26, 1967, at which time the said Law and Equity Court entered a final divorce decree in favor of the appellee-mother on the ground of abandonment, awarded her the care, custody and control of the two sons, gave to appellant certain visitation rights, required appellant to pay $40.00 per month for each son until he reached majority or completed his education, required that appellant execute a deed in favor of appellee, conveying to her all of his interest in certain real property owned jointly, subject, however, to an existing mortgage, and the payment of attorney's fees by appellant for appellee's lawyers, plus court costs.

From July 26, 1967 until June 10, 1969 the two sons lived with their mother, but the father paid the support payments for them to the court, as required by the decree.

On June 10, 1969 the youngest son, Thomas F. Adkison, was killed in an auto accident.

Subsequent to the date of the accident, the appellant filed an action on the law side of the Houston County Circuit Court against the administrator of the estate of Abe Saliba, the son of Helen Saliba, and the driver of the car in which Thomas Adkison was a passenger. The insurer of the auto owned by Helen Saliba and driven by Abe Saliba, her son, had agreed to pay $10,000 as damages in satisfaction of said claim.

Both appellant and appellee agreed to accept this amount in settlement of their claim for damages against the administrator of the estate of Abe Saliba for the wrongful death of their son, Thomas Adkison.

There was also a stipulation incorporated in the proceedings that the cause of action for the wrongful death of Thomas Adkison existed by virtue of the provisions set out in Title 7, Section 119, Code of Alabama 1940, as Recompiled 1958.

Section 119, supra, provides, as follows:

'When the death of a minor child is caused by the wrongful act, or omission, or negligence of any person or persons, or corporation, his or their servants or agents, the father, or the mother, in cases mentioned in the preceding section; or if the father and mother are both dead, or if they decline to bring the action or fail to do so within six months from the death of the minor, the personal representative of such minor may sue, and in any case shall recover such damages as the jury may assess; but a suit by any one of them for the wrongful death of the minor shall be a bar to another action, either under this section or under section 123 of this title.'

Title 7, Section 118, Code of Alabama 1940, as Recompiled 1958, also provides:

'A father, or in case of his death or desertion of his family, or his imprisonment for a term of two years or more under a conviction for crime, or of his confinement in an insane hospital, or if he has been declared of unsound mind, the mother may sue for an injury to a minor child, a member of the family.'

In deciding the question of whether or not the mother is entitled to one-half, all, or none of the proceeds from the settlement of a claim for the wrongful death of her minor son, we have concluded that we must first decide the question of who has the right of action--the mother or the father, before we can reach the question raised by the assignments of error.

The compelling reason for this conclusion is the case of Peoples v. Seamon, 249 Ala. 284, 31 So.2d 88, wherein the Supreme Court of Alabama had the following to say:

'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 (citations) 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. * * *'

'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 administractor may sue as such for his sole benefit.

'* * * 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, * * *.'

The Supreme Court, in the recent case of Daniel Construction Co. v. Pierce, 270 Ala. 522, 120 So.2d 381, confirmed the above enunciated principle, particularly as it applies to the disposition of the damages recoverable from such an action.

In the Peoples case, supra, the Daniel case, supra, and in all the other cases decided on the point in question, so far as we have been able to determine, the parents were living together as man and wife. With the existence of this relationship, there would be no question about the father suing because he was the head of the household; nor would there be any question about the proceeds of the recovery going to the father for the same reason.

This is particularly true in view of the statement in Taylor v. City of Clanton, 245 Ala. 671, 18 So.2d 369, that:

'There is no right of action at common law for the death of a child, and the right to recover damages therefor is purely statutory. Section 119, supra, gave to the parents priority over a cause of action created by statute. (citations).'

The atmosphere surrounding the Alabama cases and Sections 118 and 119, supra, pertaining to the rights of parents to sue for the wrongful death of a minor child is highly charged with the common law principles of parental duty to maintain, support and care for children with the reciprocal right in the parent to the children's services. McWhorter Transfer Co. v. Peek, 232 Ala. 143, 167 So. 291.

This conclusion is bolstered because the father has first priority in filing suit as provided in Section 118, supra; and by virtue of Peoples v. Seamon, supra, is entitled to all of the proceeds recoverable in such an action.

It would seem then that the damages to be recovered would be compensatory.

This is not so, for the damages recoverable in an action authorized by Section 119, supra, are punitive only, McWhorter Transfer Co. v. Peek, supra; the idea being to punish for the wrongful death and to deter others from engaging in such conduct as would result in the wrongful deaths of others. Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77.

To us, the theory that the damages must be punitive rather than compensatory, does not comport with the premise of the cases and statutes that give the father the initial right of action for the wrongful death of the minor child because he is the head of the family unit, supports the family, educates the children and sees to their other needs; and by that same common law principle, he is also entitled to their services, affection and companionship.

The...