Hampton v. Roberson

• Decision Date: 17 October 1935
• Docket Number: 8 Div. 615
• Parties: HAMPTON v. ROBERSON.
• Court: Alabama Supreme Court

163 So. 644

231 Ala. 55

HAMPTON v. ROBERSON.

8 Div. 615

Supreme Court of Alabama

October 17, 1935

Appeal from Circuit Court, Lawrence County; Jas. E. Horton, Judge.

Action under homicide act by J.E. Hampton, as administrator of the estate of Pearlean Hampton, deceased, against J.T. Roberson. From a judgment for defendant, plaintiff appeals.

Affirmed.

Henry D. Jones, of Florence, and Peach & Caddell, of Decatur, for appellant.

J. Foy Guin, of Russellville, for appellee.

BOULDIN Justice.

Accord and satisfaction of a claim for damages under the homicide act, Code, § 5696, upon compromise settlement between the sole beneficiary and the party charged is binding as against an administrator thereafter appointed. Kennedy v. Davis, 171 Ala. 609, 55 So 104, Ann.Cas.1913B, 225; Fischer v. Pope et al., 229 Ala. 170, 155 So. 579.

After appointment of an administrator, the chose in action is vested in him for the purposes of bringing suit, prosecuting to judgment, or entering into any compromise, accord, and satisfaction, and making distribution to those entitled under the statute. Newell et al. v. Bushard et al., 204 Ala. 73, 85 So. 274.

Before administrator appointed, accord and satisfaction can only be made with the sole beneficiary, or all the beneficiaries acting for themselves, or through others lawfully representing them.

Plea No. 5 setting up accord and satisfaction with the father of the infant child, who was killed, was subject to demurrer for failure to aver he was the sole beneficiary. The point was duly raised by demurrer. There was error in overruling same. Admittedly, the mother of the child was a beneficiary.

It is suggested that the plea was good as a partial defense in reduction of damages. The plea was in bar of the action, not by way of reduction of damages. But, if so, the plea would still be bad.

The administrator is not to be embarrassed in the prosecution of the action, by agreements entered into by one or more beneficiaries, but not all of them. The suit should proceed unhampered by such issues. When distribution time comes, the binding effect of an accord and satisfaction with a distributee who is sui juris may be fully considered as affecting his own distributive share. Newell et al. v. Bushard et al., supra; Fischer v. Pope et al., supra.

The court, at plaintiff's request, charged out the pleas of accord and satisfaction, for want of evidence to support them.

Appellant insists this did not eradicate the injury resulting from overruling demurrer to plea 5. This, because under the issue presented by this plea, evidence was admitted of interviews between the father and the defendant (appellee), in which the father said he had investigated the matter, and was satisfied the accident was unavoidable; and in that connection the appellee insisted upon voluntarily paying the funeral expenses, which he did.

We are impressed this evidence was not offered and admitted solely on the plea of accord and satisfaction. Evidence of several witnesses disclosed such alleged declaration was made at times and places wholly apart from any thought of a settlement.

It is a general rule that declarations against interest, made by a party beneficially interested, are admissible in evidence as though a party to the record. Farmers' Union Warehouse Co. v. Barnett Bros., 223 Ala. 435, 137 So. 176.

Whether an exception to this rule would exclude such declarations where the interest of others is necessarily involved may be questionable. 22 C.J. page 353, § 409.

But no objection was made to this testimony raising such question. Objection to the testimony of Mr. Kitchens was merely on the ground that no predicate was laid; meaning, as we assume, the predicate...