Breed v. Atlanta, B. & C.R. Co.

Decision Date05 June 1941
Docket Number6 Div. 809.
Citation241 Ala. 640,4 So.2d 315
CourtAlabama Supreme Court
PartiesBREED 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.

BROWN Justice.

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: "Lacerated feelings of surviving relations, and mere capacity of deceased to make money if permitted to live, do not constitute the measure of recovery under the act of Feb. 5, 1872. Prevention of homicide is the purpose of the statute, and this it proposes to accomplish by such pecuniary mulct as the jury 'deem just.' The damages are punitive, and they are none the less so, in consequence of the direction the statute gives to the damages when recovered. They are assessed against the railroad 'to prevent homicides."'

In the Sullivan case, supra, the court speaking through the brain and pen of the same great jurist observed: "Commenting on the act 'to prevent homicides,' of February 5, 1872, Pamph.Acts 83, we, in Savannah & 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. * * * 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."

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: "The right to prosecute an action for the wrongful death of his decedent is vested by the statute creating the right (Code, § 2486) in the personal representative for a definite legislative purpose, to prevent homicide. In prosecuting such action, the personal representative does not act strictly in his capacity as administrator of the estate of his decedent, because he is not proceeding to reduce to possession the estate of his decedent, but rather he is asserting a right arising after his death, and because the damages recovered are not subject to the payment of the debts or liabilities of the decedent. He acts rather as an agent of legislative appointment for the effectuation of the legislative policy, and upon recovery as a quasi trustee for those who stand in the relation of distributees to the estate strictly so called. White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R. A.,N.S., 568. And the right is vested in the personal representative alone."

Harking back, more than a half of a century, we find that Justice Stone, in Sullivan's case said: "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. * * * 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. * * * 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." [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: "The condition that the action must be one which could have been maintained by the deceased had it failed to produce death, or had not death ensued, has no reference to the nature of the loss or injury sustained, or the person entitled to recover, but to the circumstances attending the injury, and the nature of the wrongful act or omission which is made the basis of the action. Saunders on Negligence, 219; South & North Alabama R. R. Co. v. Sullivan, 59 Ala. 272, 281. As said in Whitford v. Panama R. R. Co., 23 N.Y. 465, where a similar phrase in the New York statutes was construed, it 'is inserted solely for the purpose of defining the kind and degrees of delinquency with which the defendant must be chargeable in order to subject him to the action."'

These decisions have been made the basis of the text in 8 R.C.L. p 746, § 38. We quote: "It is usually held, however, that the condition that the action must be one which could have been maintained by the deceased had it failed to produce death, or had not death ensued, has no reference to the nature of the loss or injury sustained, or the person entitled to recover, but to the circumstances attending the injury, and the nature of the wrongful act or omission which is made the basis of the action. As stated by one court in construing this...

To continue reading

Request your trial
55 cases
  • Newman v. Cole
    • United States
    • Alabama Supreme Court
    • July 18, 2003
    ...omission, or negligence `without respect to personal condition or disability of the person so protected.' Breed v. Atlanta, B. & C.R.R., 241 Ala. 640, 642, 4 So.2d 315, 316 (1941). The parental immunity doctrine has its basis in domestic harmony. Isn't the commission of the tort, in and of ......
  • Smith v. Schulte
    • United States
    • Alabama Supreme Court
    • August 18, 1995
    ...enjoy a fundamental right not to be deprived of liberty and life as a consequence of fatal malpractice. Cf. Breed v. Atlanta, B. & C.R.R., 241 Ala. 640, 642, 4 So.2d 315, 316 (1941) (purpose of wrongful death actions is to "stimulate diligence in the protection of [a person's] natural right......
  • Aleo v. SLB Toys USA, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • September 13, 2013
    ...... [and] to stimulate diligence in protection of the natural right to live....” Hare, supra at 341, quoting Breed v. Atlanta, B. & C.R. Co., 241 Ala. 640, 642, 4 So.2d 315 (1941). 20. There was also evidence that Robin's death resulted in economic injury to her family, in the form of lost ......
  • Tatum v. Schering Corp.
    • United States
    • Alabama Supreme Court
    • March 18, 1988
    ...to sue as an agent of legislative appointment for effecting the declared public policy of preventing homicides. Breed v. Atlanta B. & C.R. Co., 241 Ala. 640, 4 So.2d 315; Also it is settled that the suit under this statute may be prosecuted against joint tort feasors whose wrongful act or n......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT