Drummond v. Drummond, 6 Div. 45

CourtSupreme Court of Alabama
Writing for the CourtBOULDIN, J.
Citation102 So. 112,212 Ala. 242
PartiesDRUMMOND v. DRUMMOND.
Docket Number6 Div. 45
Decision Date23 October 1924

102 So. 112

212 Ala. 242

DRUMMOND
v.
DRUMMOND.

6 Div. 45

Supreme Court of Alabama

October 23, 1924


Rehearing Denied Nov. 27, 1924

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Action by Josephine Drummond, as administratrix of the estate of Sam Drummond, deceased, against Freeman Drummond, for damages for the wrongful killing of plaintiff's intestate. Judgment for plaintiff, and defendant appeals. Affirmed. [102 So. 113]

Gray & Powell, of Jasper, for appellant.

Ray & Cooner, of Jasper, for appellee.

BOULDIN, J.

The suit is for damages for death by wrongful act, brought under the Homicide Act. Code 1907, § 2486.

The complaint was amended by substituting new counts for the original counts, thus eliminating the original. Any ruling adverse to defendant on the original counts is immaterial.

The third count charges that the defendant "wrongfully caused the death of *** plaintiff's intestate, by wrongfully shooting him with a pistol." The fourth count charges the same, adding that "as a proximate consequence of which wrongful shooting plaintiff's intestate died." Both counts are good and not subject to demurrer. In cases under this statute where death is the result of negligence, a complaint should generally show such relation between the parties as to raise a duty from one to the other. Thereupon a general averment of negligence is sufficient to show a failure of duty. This should be followed by an averment that such negligence was the proximate cause of the injury. The counts before us charge direct trespass rather than case. If broad enough to cover a wrongful act resulting from negligence, they charge a violation of the common duty which all men owe to each other. Wrongfully causing the death of another by shooting him with a pistol, whether intentionally or negligently, includes all the elements of duty violated and causal connection between the act and the fatal injury. Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882; Id., 208 Ala. 553, 94 So. 546; Massey v. Pentecost, 206 Ala. 411, 90 So. 866.

In setting up self-defense as justification in this form of action, all the elements of self-defense should appear in the plea. A plea showing the homicide occurred in the place of business of defendant need not negative the opportunity for retreat. [102 So. 114]

In setting forth the necessity, the presence of imminent danger to life or of grievous bodily harm, it may present real or apparent necessity in the alternative. Apparent necessity must be such as to impress a reasonable man of its presence and imminence, and must so impress the defendant at the time of the fatal shot. Otherwise, he does not fire the shot in the necessary protection of his person, but out of other motive, and there can be no self-defense. The ruling on demurrer to plea No. 2, necessitating the amendment filed thereto, imposed on defendant no higher burden in maintaining self-defense than the law requires. Plea No. 3, seeking to set off an indebtedness due from the decedent to defendant against a claim for damages for wrongfully causing decedent's death, is not good for the following reason, if not otherwise: The damages recoverable are not assets of the estate; the administrator is a mere trustee or representative of the next of kin in suing for their benefit. Code 1907, § 2486; Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882. There was no error in rulings on the pleadings.

Felix Gardner, a witness for plaintiff, was the only eyewitness to all or a part of the fatal difficulty. In a protracted cross-examination of Mr. Gardner, the defendant sought in many ways to show bias....

To continue reading

Request your trial
29 practice notes
  • International Union, United Auto., Aircraft and Agr. Implement Workers of America, C.I.O. v. Russell, 8 Div. 751
    • United States
    • Supreme Court of Alabama
    • March 22, 1956
    ...cross-examination is within the sound discretion of the trial court. Hackins v. State, 212 Ala. 606, 103 So. 468; Drummond v. Drummond, 212 Ala. 242, 102 So. 112; Ex parte Ford, 213 Ala. 410, 104 So. 840, granting certiorari Ford v. State, 20 Ala.App. 663, 104 So. Grounds 95 and 96 of defen......
  • Rose v. Magro, 6 Div. 468.
    • United States
    • Supreme Court of Alabama
    • October 24, 1929
    ...such bodily harm at the hands of intestate. All the elements of self-defense are required to be embraced in a plea (Drummond v. Drummond, 212 Ala. 242, 102 So. 112; Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546) by the facts averred, and from which the conclusion employed follows as a m......
  • Cain v. Skillin, 6 Div. 996.
    • United States
    • Supreme Court of Alabama
    • March 21, 1929
    ...has been often held that in civil cases defendant may not prove his good character as he may do in criminal cases. Drummond v. Drummond, 212 Ala. 242, 102 So. 112; Hancock v. Hullett, 203 Ala. 272, 82 So. 522; Lester v. Gay, 217 Ala. 585, 117 So. 211; Sharp v. Clopton (Ala. Sup.) 117 So. 64......
  • Geohagan v. General Motors Corp.
    • United States
    • Supreme Court of Alabama
    • May 24, 1973
    ...where the injury results in death. Southern Ry. Co. v. Sherrill, 232 Ala. 184, 167 So. 731 (1936); see also Drummond v. Drummond, 212 Ala. 242, 102 So. 112 (1924). (3) In wrongful death actions against joint defendants the damages are not divided according to the relative culpability of eac......
  • Request a trial to view additional results
29 cases
  • International Union, United Auto., Aircraft and Agr. Implement Workers of America, C.I.O. v. Russell, 8 Div. 751
    • United States
    • Supreme Court of Alabama
    • March 22, 1956
    ...cross-examination is within the sound discretion of the trial court. Hackins v. State, 212 Ala. 606, 103 So. 468; Drummond v. Drummond, 212 Ala. 242, 102 So. 112; Ex parte Ford, 213 Ala. 410, 104 So. 840, granting certiorari Ford v. State, 20 Ala.App. 663, 104 So. Grounds 95 and 96 of defen......
  • Rose v. Magro, 6 Div. 468.
    • United States
    • Supreme Court of Alabama
    • October 24, 1929
    ...such bodily harm at the hands of intestate. All the elements of self-defense are required to be embraced in a plea (Drummond v. Drummond, 212 Ala. 242, 102 So. 112; Kuykendall v. Edmondson, 208 Ala. 553, 94 So. 546) by the facts averred, and from which the conclusion employed follows as a m......
  • Cain v. Skillin, 6 Div. 996.
    • United States
    • Supreme Court of Alabama
    • March 21, 1929
    ...has been often held that in civil cases defendant may not prove his good character as he may do in criminal cases. Drummond v. Drummond, 212 Ala. 242, 102 So. 112; Hancock v. Hullett, 203 Ala. 272, 82 So. 522; Lester v. Gay, 217 Ala. 585, 117 So. 211; Sharp v. Clopton (Ala. Sup.) 117 So. 64......
  • Geohagan v. General Motors Corp.
    • United States
    • Supreme Court of Alabama
    • May 24, 1973
    ...where the injury results in death. Southern Ry. Co. v. Sherrill, 232 Ala. 184, 167 So. 731 (1936); see also Drummond v. Drummond, 212 Ala. 242, 102 So. 112 (1924). (3) In wrongful death actions against joint defendants the damages are not divided according to the relative culpability of eac......
  • 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