Bruce v. Collier, 7 Div. 921.

• Decision Date: 27 March 1930
• Docket Number: 7 Div. 921.
• Citation: 221 Ala. 22,127 So. 553
• Parties: BRUCE v. COLLIER.
• Court: Alabama Supreme Court

127 So. 553

221 Ala. 22

BRUCE v. COLLIER.

7 Div. 921.

Supreme Court of Alabama

March 27, 1930

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action for damages for personal injuries by C. F. Bruce against J A. Collier, revived, on death of C. F. Bruce, in the name of Rebecca Bruce, as administratrix of the estate of C. F Bruce, deceased. Plaintiff takes a nonsuit and appeals from adverse rulings on pleading, overruling a demurrer to plea in abatement.

Affirmed.

Goodhue & Lusk, of Gadsden, for appellant.

H. G Bailey, of Boaz, for appellee.

BOULDIN J.

This action was originally brought by C. F. Bruce against J. A Collier for personal injuries.

The injuries are charged, first, to negligence of the employees of defendant in the operation of a truck on a public highway; and, second, to wantonness in the operation of the truck.

Pending this action, and some eight months after the injury, C. F. Bruce died. His death being suggested, leave to revive was granted, and thereafter, on motion, the cause was revived, or order of revivor made, in the name of Rebecca Bruce, as administratrix.

Prior to this order of revivor, the administratrix brought a separate suit under the Homicide Act (Code 1923, § 5696) for the same tort, alleging that such injuries had resulted in the death of her intestate. This latter suit, after such order of revivor, proceeded to trial and judgment in favor of the plaintiff.

The judgment was paid in full. Thereafter, this revived suit coming on for hearing, defendant, by leave of the court, withdrew demurrers filed to the original complaint, and filed a plea, styled a plea in abatement, setting up all the matters above recited, and praying that the suit be abated.

A motion to strike and demurrer to the plea in abatement were successively overruled. Because of these adverse rulings, plaintiff took a nonsuit and appeals.

The plea here involved cannot be sustained as a plea of "former suit pending" under Code, § 5657. This statute is a substantial re-enactment of the common-law rule. Ex parte Barclay-Hays Lumber Co., 211 Ala. 500, 101 So. 179.

The plea was interposed in the suit first begun. Moreover, the second suit had been tried, judgment recovered and satisfied, was no longer pending when plea filed.

While the plea is styled and verified as a plea in abatement, under our rule denying a reversal unless injury appears, the plea should be judged by its substance and legal effect to determine whether it interposes an effective bar to the further maintenance of this suit.

Among the inquiries that arise is this: Does an action for personal injuries begun by the decedent while in life, survive to his personal representative if death results from the same tort, giving rise to an action under the homicide act?

Appellant's view is that under our present statutes two actions may be now maintained by the administrator: One to recover actual damages suffered by the injured while living for the benefit of his estate; the other to recover punitive damages for the wrongful act causing his death for the benefit of his next of kin.

Appellant presents authority from other states, notably N. C. & St. L. Ry. v. Hubble, 140 Ga. 368, 78 S.E. 919, L. R. A. 1915E, 1132, wherein the Georgia court, construing our Alabama statutes, reached the conclusion that both actions may be maintained.

This court has ruled otherwise in Ex parte Adams, 216 Ala. 241, 113 So. 235.

In the Adams Case, as here, the injured party sued for personal injuries in his lifetime, and died during the pendency of the suit; his administrator sued under the Homicide Act. Defendant interposed a plea of "former suit pending," which plea was sustained in this court. The court pointed out that by the terms of the Homicide Act the action lies only in those...