Giles v. Parker

• Decision Date: 28 February 1935
• Docket Number: 6 Div. 553.
• Citation: 159 So. 826,230 Ala. 119
• Parties: GILES et al. v. PARKER.
• Court: Alabama Supreme Court

159 So. 826

230 Ala. 119

GILES et al. v. PARKER.

6 Div. 553.

Supreme Court of Alabama

February 28, 1935

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action by J. M. Parker against B. F. Giles and Employers' Liability Assurance Corporation. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

M. H Murphy, of Birmingham, and Taylor, Richardson & Sparkman, of Huntsville, for appellants.

Horace C. Wilkinson, of Birmingham, for appellee.

BROWN Justice.

This is an action of trespass vi et armis against Giles, as sheriff of Madison county, and the surety on his official bond, for wrongfully causing the death of plaintiff's minor son. Holland v. Fidelity & Deposit Co. of Maryland et al., 225 Ala. 669, 145 So. 131.

The complaint consists of a single count, which, after averring that the defendant Giles was on June 5, 1932, the sheriff of Madison county, and that the other defendant was the surety on his official bond, avers, "that on to-wit, said date the defendant Ben F. Giles, acting by and through his duly authorized deputy, one W. T. McMinn, then and there acting within the line and scope of his employment as such deputy and in and about the performance of his official duties as deputy sheriff of Madison county, Alabama, appointed and employed by the defendant Ben F. Giles, wrongfully shot and killed plaintiff's minor son, Homer Parker."

The defendants "separately and severally" demurred to the complaint, on grounds, among others, that it does not state a joint cause of action in favor of the plaintiff against both defendants; that no cause of action is stated therein in favor of the plaintiff against the defendant Giles; that no cause of action is stated therein against the surety; and that the complaint shows on its face that there is no joint liability on the part of these defendants for the alleged wrongs.

The demurrer was overruled and the defendants separately pleaded in short by consent, the general issue with leave to give in evidence any matter, which, if specially pleaded, would constitute a defense, with like leave to plaintiff to offer proof of any matter that would be admissible in reply to such special defenses. There was a verdict and judgment for plaintiff against both defendants hence this appeal.

The plaintiff rests his right of action on the provisions of section 5695 of the Code 1923, giving to the father a right of action "when the death of a minor child is caused by the wrongful act, or omission, or negligence of any person or persons, or corporation, his or their servants or agents," and the question presented for decision is whether or not a deputy sheriff, acting within the scope of his duty and authority, is an agent or servant of the sheriff within the doctrine of respondeat superior. (Italics supplied.)

There can be no question that Giles would be personally liable under this statute for his own acts in wrongfully or negligently causing such death; nor is it to be doubted the sheriff, as such, and the surety on his official bond, would be liable for a personal injury, not resulting in death, inflicted or caused to another by his negligent or wrongful act, or that of his deputy acting by virtue of his office or under color thereof. Such right of action exists under the common law, and such personal injury is well within the obligations of the sheriff's bond and the statute, declaring that "every official bond is obligatory on the principal and sureties thereon * * * for the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office as by his failure to perform, or the improper or neglectful performance of those duties imposed by law." (Italics supplied.) Code 1923, § 2612; Holland v. Fidelity & Deposit Co. of Maryland et al., supra.

There is no civil liability, under the common law, as interpreted in this jurisdiction, against one who wrongfully or negligently causes the death of a human being; and hence no right of action exists under the common law therefor. The right of action is purely statutory. Hain v. Gaddy et al., 219 Ala. 363, 122 So. 329; White v. Ward, 157 Ala. 345, 47 So. 166, 18 L. R. A. (N. S.) 568; Kennedy v. Davis, 171 Ala. 609, 55 So. 104, Ann. Cas. 1913B, 225.

Therefore, cases dealing with civil liability for personal injuries, not resulting in death, for which the common law gives a right of action, cannot be considered as apt authority to sustain the liability in this case.

The same is true as to decisions where the officer personally was guilty of the wrong, and the question presented for decision was not the officer's liability, but the liability of the sureties on his bond, such as Moore et al. v. Lindsay et al., 31 Tex.Civ.App. 13, 71 S.W. 298.

In Hain v. Gaddy et al., 219 Ala. 363, 122 So. 329, a case in which it was alleged that the plaintiff's testate was wrongfully killed by Gaddy, the sheriff of Dallas county, in attempting his arrest, it was ruled that the complaint did not state a cause of action against the surety for the reason that only punitive damages were recoverable under section 5696 of the Code, 1923, the homicide statute.

To avoid the effect of this decision and uphold the judgment against the appellant Employers' Liability Assurance Corporation, the surety on the sheriff's official bond, appellee strenuously insists that the holding in Louisville & Nashville R. Co. v. Bogue, 177 Ala. 349, 58 So. 392, that only punitive damages are recoverable under section 5695 of the Code, is unsound, and that case should be overruled. This argument is based on the language of the act approved January 23, 1885 (Acts 1884-85, p. 99), which preceded section 2588 of the Code of 1886, and which is entitled: "An Act allowing parents or personal representative of a minor child to sue a person or corporation for a wrongful act or omission causing any personal injury to, or death of, such minor," and the act provides: "That when any personal injury or the death of any minor child is caused by the wrongful act, or omission of any person; or any officer, or agent of an incorporated company, or private association of persons, the father, or in case of his death, or desertion of his family, the mother, or in case of their death the legal representative of such minor may maintain an action against such person, corporation, or private association of persons, for such wrongful act or omission, and may recover such damages as the jury may assess." (Italics supplied.)

The argument is, that the purpose of this act was not to prevent homicides, or to protect human life, but to give a right of action for pecuniary hurt or loss.

It is conceded that this statute was materially changed in bringing it forward into the Code of 1886, in that the provision for a right of action for personal injury was omitted. As originally enacted, it limited the right of action for "wrongful act or omission of any person" to the person guilty of the wrongful act or omission, but as to corporations, it conferred the right of action for the wrongful act or omission of "any officer or agent" of such corporation under the doctrine of respondeat superior. Hendrick v. Walton et al., 69 Tex. 192, 6 S.W. 749; Savannah & Memphis Railroad Co. v. Shearer, Adm'x, 58 Ala. 672. In the first codification the statute was so changed as to apply the doctrine to persons and corporations alike for the wrongful acts or omissions causing the death to "his or their servants or agents." Code 1886,§ 2588. It was brought forward in the Code of 1896 as section 26, without further change in its verbiage, but in bringing it forward in the Code of 1907, as section 2485, it was further changed by relating it to section 2486 (section 27 of the Code of 1896), "the homicide act," accompanied by the following observation of the code commissioner: "The act as originally passed was never construed by the supreme court; it was very greatly modified, when codified as it appeared in § 2588 of the Code of 1886, and was brought forward as § 26 of the Code of 1896. It was evidently the intention of the legislature to give the parents, the father and mother, respectively, in the cases mentioned, a right of action for the wrongful death of their infant in the same manner as the right of action was conferred upon the personal representative under the homicide act, § 27 of the Code of 1896, but to make the action by the parent a bar to an action under the homicide act, so as not to allow an action by both the parent and personal representative for the same wrongful act causing death of infant. There was evidently some confusion or lack of clearness as to the relation of this section to the one following. An action by the parent for the wrongful death of the infant would certainly be a bar to an action by the personal representative under § 26; would it also be a bar to an action by the personal representative under § 27, or was the effect of the statute of Jan. 23, 1885, or the act as codified, § 26 of the Code of 1896, to take away the right of action under §...