Kennedy v. Davis

Decision Date17 February 1911
PartiesKENNEDY v. DAVIS.
CourtAlabama Supreme Court

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Suit by J. D. S. Davis against J. S. Kennedy, as administrator, etc. From an order overruling a demurrer to the bill, defendant appeals. Affirmed.

Bondurant & Smith, for appellant.

Tillman Bradley & Morrow and John S. Stone, for appellee.

MAYFIELD J.

Two questions are presented on this appeal: First. Can a sole heir and distributee, before administration and before suit brought, settle and release a claim as to damages for the wrongful death of the intestate, so as to bar an action under the homicide statute (Code 1907, § 2486) by the administrator, who alone is authorized to bring such action? Second. Can a court of equity enjoin an action at law brought by the administrator, under the homicide statute, to recover damages for the wrongful death of his intestate, when the sole heir and distributee has compromised with and released the wrongdoer from all damages, before administration granted or suit brought? We answer "Yes," to both questions.

Appellant sued appellee under the homicide statute (Code, § 2486), to recover damages for the wrongful death of plaintiff's intestate. Appellee thereafter filed a bill in the chancery court to enjoin the action at law, upon the ground that complainant had settled in full with the sole heir and distributee of intestate, and obtained a release from all damages, action, cause of action, and right of action for such wrongful death of the intestate. The respondent demurred to the bill, assigning but one ground--that the bill had no equity. The chancellor overruled the demurrer, from which decree this appeal is taken.

It has been decided and many times reaffirmed by this court that actions under this enactment are purely statutory. There was no such action or right of action at common law. The statute provides that the action can be brought only by the personal representative, in case the intestate is an adult, or by the parent or personal representative, in case the intestate is a minor. In the case at bar the intestate was an adult. The statute also directs that "the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distribution."

While at common law choses in action descended to the personal representative, and he held the legal title thereto, this case is different, because the chose in action here never did belong to the intestate; the statute creates it only upon his wrongful death. White v. Ward, 157 Ala. 345, 47 So. 166, 18 L. R. A. (N. S.) 568. So far as the right of action is concerned, the statute vests it exclusively in the personal representative; but, so far as the property right in the damages is concerned, the statute vests it exclusively in the distributees of intestate. The damages are not assets of the estate, for administration, except for the purpose of collection by suit, and for distribution by the personal representative to those entitled thereto. Neither the personal representative nor the creditors have any claim, right, or title to any part or interest in the damages. Griswold's Case, 111 Ala. 572, 20 So. 437. The only right or duty the administrator has is to maintain the suit, and collect the damages and pay them over to the distributees. He is a mere agency and conduit, provided by the statute for bringing the suit, collecting the damages, and passing them over to those entitled thereto.

It has also been repeatedly declared by this court that the damages under this statute are essentially punitive, and not compensatory; the measure thereof being "such as the jury may assess." There is no other standard for fixing or determining the amount. It has been held that the purpose of the statute was not to compensate or recompense any one, but to mete civil punishment to the wrongdoer, and thereby prevent homicides. S. & M. R. Co. v. Shearer, 58 Ala. 672; South & N. A. R. Co. v. Sullivan, 59 Ala. 272; Buckalew's Case, 112 Ala. 146, 20 So. 606; A. G. S. R. Co. v. Burgess, 116 Ala. 509, 22 So. 913. The Code, however, directs that the damages shall be distributed according to the statute of distribution, and shall not be subject to the payment of debts or liabilities of the testator or intestate. While the statute is penal, it has been held that it is not penal in such sense that the wrongdoer cannot be compelled to testify in a case against him under the statute. Southern Railway Co. v. Bush, 122 Ala. 470, 26 So. 168.

It thus appearing that the administrator has no pecuniary interest in the damages or in the judgment therefor, and, further, that it may be his duty and right to bring the suit and prosecute it to effect for the distributee, we can see no reason why the sole beneficiary of the suit, damages, and judgment cannot compromise and settle with the alleged wrongdoer, out of court, and why it will not be binding upon the administrator. In fact, such rule has been settled as the law of other states.

The Supreme Court of Wisconsin, in the case of McKeigue v. C. & N.W. Ry. Co., 130 Wis. 543, 110 N.W. 384, 11 L. R. A. (N. S.) 148, 118 Am. St. Rep. 1038, spoke as follows on this subject: "If, therefore, the administrator be allowed to prosecute his claim to judgment, he will do so (under the allegations of the answer) solely in order that he may pay the net proceeds to the sole beneficiary, who made a settlement of the claim with the defendant, before the appointment of the administrator. If this settlement was freely and fairly made, must a court allow the claim to be prosecuted again for the sole benefit of the person who made it, and who received and retains the full amount paid in settlement? The statement of the proposition seems its best answer. Such a rule would shock every natural sense of justice. Courts exist to redress or prevent wrongs, not to perpetrate them. Doubtless injustice is often inflicted by the decision of courts, but this results from defects in legal machinery, the inability of mere human law-makers to grasp and comprehend the effect of legislation, or from the necessary imperfection of finite judgment and reasoning, rather than from any conscious or intentional departure from the dictates of justice and right. Happily there are no arbitrary, legal rules which prevent the court from administering justice in a case such as is claimed by the answer to exist. This court has already held that the sole beneficiary of a claim for the death of one person by the act or default of another, under sections 4255, 4256, Statutes of 1898 (Lord Campbell's act), has power to make a valid and binding settlement with the wrongdoer, notwithstanding the fact that any action for such damages must be brought by the personal representative of the deceased. Schmidt v. Deegan, 69 Wis. 300, 34 N.W. 83."

It is thus the policy of the...

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