Breed v. Atlanta, B. & C.R. Co.
Decision Date | 05 June 1941 |
Docket Number | 6 Div. 809. |
Citation | 241 Ala. 640,4 So.2d 315 |
Court | Alabama Supreme Court |
Parties | BREED v. ATLANTA, B. & C. R. CO. |
Rehearing Denied Oct. 23, 1941.
Wm Dowdell Denson and Edward W. McDonald, both of Birmingham for appellant.
Peyton D. Bibb and Bibb & Rice, all of Birmingham, for appellee.
This is an action on the case by the appellant as the administrator of Joe Breed deceased, for his wrongful death under § 5696 of the Code 1923, Code 1940, Tit. 7, § 123.
Counts one and two of the complaint aver, in short, that while said Joe Breed was in the act of crossing the defendant's railroad track, he was run against and killed by a train of the defendant, and that his death was proximately caused by the negligence of defendant's servants or agents while acting within the scope of their employment in the operation of said train. The third count, otherwise the same as the other two, charges that said death was caused by the "wanton, wilful, or intentional conduct of the servants or agents" in causing said train to run against said intestate.
The defendant filed pleas in abatement alleging that at the time of said intestate's death he was a convict under life sentence to the penitentiary in Alabama.
The plaintiff's demurrer to said pleas, assigning thirty grounds, was overruled; the plaintiff because of said ruling took a nonsuit, authorized by § 6431, of the Code of 1923, Code 1940, Tit. 7, § 819, and appealed.
The argument for appellee is that in consequence of his conviction and sentence to life imprisonment said intestate was civiliter mortuus, and therefore deprived of all civil rights including the right to redress for civil injury resulting from the defendant's delict, and therefore under the condition in the statute " if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death," the life of said intestate was not within the protective provision of the statute, and the plaintiff was without legal right to sue. [Italics supplied.]
The statute, Code of 1923, § 5293, Code 1940, Tit. 61, § 3, modifies and reaffirms the common law to the effect that a conviction and sentence to life imprisonment, constitutes civil death-that state of a person who, although possessing natural life, has lost all his civil rights and as to them is civilly dead. Holmes v. King, 216 Ala. 412, 113 So. 274; Quick v. Western Ry. of Alabama, 207 Ala. 376, 92 So. 608.
The answer to appellee's contention is that Code, § 5696, does not deal with the civil rights of persons whose death is caused by "wrongful act, omission, or negligence." It deals with the natural right of life which is in no way affected by a conviction and sentence to life imprisonment. The very sentence and judgment of the court imposing it recognizes and confirms the right of the convict to life. The purpose and scope of our statute, Code 1923, § 5696, whatever the rule may be elsewhere, is to protect human life; to prevent homicides by wrongful act, omission or negligence of persons and corporations, their agents and servants; and to stimulate diligence in the protection of the natural right to live, without respect to the personal condition or disability of the person so protected. Savannah & Memphis Railroad Co. v. Shearer, Adm'x, 58 Ala. 672; South & North Alabama Railroad Company v. Sullivan, Adm'r, 59 Ala. 272; Richmond & Danville Railroad Company v. Freeman, 97 Ala. 289, 11 So. 800.
In the case first above cited, decided at the December Term, 1877, construing the act of February 5, 1872, now § 5696 of the Code, this court speaking through Stone, J., afterwards for many years Chief Justice, observed: '
In the Sullivan case, supra, the court speaking through the brain and pen of the same great jurist observed:
This interpretation and application of the statute was restated and reaffirmed in Richmond & Danville Railroad Company v. Freeman, supra, and the statute has been brought through the several Codes since that time to the present without change.
The right of action which the statute gives is a new right, not derivative nor the right of succession to the person slain. It is not a right of property, and the personal representative in bringing and prosecuting the suit acts as an agent of legislative appointment for the effectuation of the public policy it declares-the prevention of homicides. Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912; White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A., N.S., 568; Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882.
In Holt v. Stollenwerck, supra, the court speaking through Sayre, J., observed:
Harking back, more than a half of a century, we find that Justice Stone, in Sullivan's case said: [Italics supplied.]
This interpretation of the statute was reaffirmed in King, Adm'x, v. Henkie et al., 80 Ala. 505, 509, 60 Am.Rep. 119, in the following language: '
These decisions have been made the basis of the text in 8 R.C.L. p 746, § 38. We quote: ...
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