Esdale v. Baxter

• Decision Date: 25 April 1929
• Docket Number: 6 Div. 217.
• Citation: 219 Ala. 256,122 So. 12
• Parties: ESDALE v. BAXTER.
• Court: Alabama Supreme Court

122 So. 12

219 Ala. 256

ESDALE v. BAXTER.

6 Div. 217.

Supreme Court of Alabama

April 25, 1929

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action for wrongful death by Agnes C. Esdale, as executrix of the estate of Charles C. Esdale, deceased, against R. R. Baxter. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Sayre and Gardner, JJ., dissenting.

Chas W. Greer and George Frey, both of Birmingham, for appellant.

Cabaniss Johnston, Cocke & Cabaniss and Gerry Cabaniss, all of Birmingham, for appellee.

BROWN J.

This action is under the Homicide Act, Code of 1923, § 5696, to recover damages for negligently causing the death of plaintiff's testate.

The trial resulted in a verdict and judgment for the defendant and on this appeal the plaintiff presents for review the ruling of the trial court in giving certain special instructions for the defendant and the overruling of plaintiff's motion for a new trial.

Charges 8, 13, 15, 16, and 17 relate solely to the character and measure of damages recoverable, and, if errors intervened in the giving of any of these charges, it was error without injury. Loveman v. B. R. L. & P. Co., 149 Ala. 515, 43 So. 411; Randle v. B. R. L. & P. Co., 169 Ala. 314, 53 So. 918.

The decisions construing and applying this statute are uniform in holding that the statute gives the personal representative of one whose death is caused by the wrongful act, omission, or negligence of another a right of action-that is, a right to sue and recover such damages as the jury may assess-and, while the damages are punitive in their nature, they are not in a strict sense a penalty or fine; nor is the action penal or quasi criminal, but is purely civil in nature for the redress of private, and not public, wrongs. Southern Railway Co. v. Bush, 122 Ala. 489, 26 So. 168. And criminal terminology as related to criminal prosecutions to enforce public justice has no place in a civil action under the statute. Watson v. Adams and Watson v. Franklin, 187 Ala. 490, 65 So. 528, Ann. Cas. 1916E, 565.

The decisions are also agreed that evidence going to show pecuniary damages is wholly irrelevant and immaterial, because such damages are not recoverable, and cannot be considered in such actions. Richmond & Danville R. Co. v. Freeman, 97 Ala. 289, 11 So. 800; Savannah & Memphis R. Co. v. Shearer, Adm'x, 58 Ala. 672; South & North Alabama R. R. Co. v. Sullivan, 59 Ala. 279; Buckalew, Adm'r, v. Tenn. Coal, Iron & R. Co., 112 Ala. 146, 20 So. 606; Alabama G. S. R. Co. v. Burgess, 116 Ala. 509, 22 So. 913; L. & N. R. Co. v. Tegner, Ex'x, 125 Ala. 593, 28 So. 510.

In the case last cited, this court, in reviewing the ruling of the trial court rejecting evidence offered to show the pecuniary loss suffered, observed: "Manifestly if this testimony cannot be made the basis upon which a jury would be authorized to act, it has no place in the proceedings and the court committed no error in refusing to allow it to be introduced." (Italics supplied.) If such evidence has no place in the proceedings, it is clear that the jury should not be instructed to consider "the fact that plaintiff is not entitled to compensation" in determining whether or not damages should be assessed at all.

While the damages recoverable are punitive, and the damages to be assessed are left by the statute to the sound discretion of the jury, in a large measure, yet the right of the plaintiff to recover is not a matter of discretion, but a matter of statutory right, if the evidence is sufficient to establish the cause of action, and there is an absence of defensive matter that would bar a recovery.

Charge 9, given at the instance of the defendant, goes further than to deal with the character and measure of damages, and by it the jury was instructed that "in determining whether you should assess any damages against the defendant *** you must consider the fact that the plaintiff is not entitled to compensatory damages"; while charge 12 was contradictory of this instruction, and instructed the jury: " You are not to consider any pecuniary loss sustained by the plaintiff in determining the verdict you may render." (Italics supplied.)

Charge 12 correctly states the law, but charge 9 is erroneous, and the court committed error in giving it. Clinton Mining Co. v. Bradford, 192 Ala. 576, 69 So. 4; Vidmer et al. v. Lloyd, 184 Ala. 153, 63...