Kuykendall v. Edmondson, 8 Div. 235.

CourtSupreme Court of Alabama
Writing for the CourtMILLER, J.
Citation205 Ala. 265,87 So. 882
PartiesKUYKENDALL v EDMONDSON.
Decision Date27 January 1921
Docket Number8 Div. 235.

87 So. 882

205 Ala. 265

KUYKENDALL v EDMONDSON.

8 Div. 235.

Supreme Court of Alabama

January 27, 1921


Appeal from Circuit Court, Marshall County; W. W. Harralson, Judge.

Action by Mary M. Edmondson, as administratrix, against C. Kuykendall, for damages for the death of her intestate. Judgment for the plaintiff, and defendant appeals. Reversed and remanded. [87 So. 883]

John A. Lusk & Son and Street & Bradford, all of Guntersville, for appellant.

A. E. Goodhue and E. O. McCord, both of Gadsden, for appellee.

MILLER, J.

This is the second appeal to this court of this case. It is reported in 200 Ala. 650, 77 So. 24.

David Edmondson was killed by C. Kuykendall. The suit is brought under section 2486 of the Code of 1907, by the administratrix of David Edmondson's estate. This section authorizes a personal representative to maintain an action and recover damages for a wrongful act of a person whereby death is caused.

There is one count in the complaint. It alleges that the defendant wantonly, willfully, or intentionally killed the plaintiff's intestate by shooting him with a gun, and other matters, essential but not necessary to be mentioned here. There are two grounds of demurrer insisted on in argument to it, viz.: (1) The act is alleged to have been done in three alternatives; and (2) it does not show or aver the act was wrongful.

This complaint would have been good if the word "and" had been used, instead of the word "or" therein. If the word of the statute "wrongful" had been used, instead of the words "wanton, intentional, or willful," the complaint would be good.

The statute declares the act causing death must be wrongful. The "wantonly killed," as charged in the complaint, includes wrongfully done, and would have stated a cause of action if it had not been coupled disjunctively with intentional or willful. A willful killing is not necessarily a wrongful killing. An intentional killing may not be a wrongful killing. One man can kill another willfully or intentionally, and yet do so in self-defense and not wrongfully. An intentional and willful killing may be justifiable and not wrongful.

Every averment as to the killing must state it was wrongfully done, or its legal equivalent. Every alternative averment must state a cause of action. An intentional or willful killing by shooting with a gun may be wrongfully or rightfully done. Pleadings must be construed most strongly against the pleader; so these grounds of demurrer to the complaint should have been sustained. Section 2486 of the Code of 1907; Kennedy v. Davis, 171 Ala. 609, 55 So. 104, Ann. Cas. 1913B, 225; Lawrence v. Seay, 179 Ala. 386, 60 So. 937.

The court did not allow the defendant, Kuykendall, to testify as to the acts of himself and deceased at the time of the killing. Was this error? Yes. The estate of David M. Edmondson was not interested in the result of this suit. The statute (section 2486) expressly says:

"The damages recovered are not subject to the payment of debts or liabilities of the testator or intestate, but must be distributed according to the statute of distribution."

Section 4007 disqualifies the defendant from testifying when the deceased person's estate is interested in the result of the suit.

The suit must be brought by the administrator of the estate, not for the benefit [87 So. 884] of the estate, but for the distributees. If any damages are recovered the distributees, and not the estate, receive it. The widow and children, if any, or next of kin of deceased, and not his estate, receive the damages, if any are recovered. The cause of action arose after the death of Edmondson, and the damages belong to his distributees and not his estate. The administrator must hold the damages, if recovered, for distribution only. If the estate of deceased is interested in the result of the suit, then the damages would go to the exemptions of widow and minors, or either, cost of administration, payment of debts, and then to his distributees; but section 2486 expressly declares the contrary.

David Edmondson's estate has no interest in the result of this suit, because if his administratrix lost it no cost could be taxed...

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25 practice notes
  • Lewis v. Martin, 6 Div. 961.
    • United States
    • Supreme Court of Alabama
    • October 18, 1923
    ...deceased, within the provisions of section 4007 of the Code of 1907. That statute has been recently construed. Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882; Darrow v. Darrow, 201 Ala. 477, 78 So. 383; Frederick v. Wilbourne, 198 Ala. 137, 73 So. 442; Henry v. Hall, 106 Ala. 84, 17 So. ......
  • Alabama Power Co. v. Stogner, 8 Div. 347.
    • United States
    • Alabama Supreme Court
    • December 14, 1922
    ...are not subject to administration, and are merely to be distributed to the beneficiaries named in the statute. Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882; Griswold v. Griswold, 111 Ala. 572, 577, 20 So. 437; Newell v. Bushard, 204 Ala. 73, 85 So. 274; Kennedy v. Davis, supra; White v......
  • Germann v. Matriss
    • United States
    • United States State Supreme Court (New Jersey)
    • January 19, 1970
    ...party--an agent authorized to bring the suit for the benefit of those individuals specified by the Legislature. Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882 (1921); Beauvais v. Springfield Institute For Savings, 303 Mass. 136, 20 N.E.2d 957, 124 A.L.R. 611 (1939); Tillinghast v. Maggs,......
  • Breed v. Atlanta, B. & C.R. Co., 6 Div. 809.
    • United States
    • Supreme Court of Alabama
    • June 5, 1941
    ...174 Ala. 213, 56 So. 912; White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A., [241 Ala. 643] N.S., 568; Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882. In Holt v. Stollenwerck, supra, the court speaking through Sayre, J., observed: "The right to prosecute an action for the wrongful death......
  • Request a trial to view additional results
25 cases
  • Lewis v. Martin, 6 Div. 961.
    • United States
    • Supreme Court of Alabama
    • October 18, 1923
    ...deceased, within the provisions of section 4007 of the Code of 1907. That statute has been recently construed. Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882; Darrow v. Darrow, 201 Ala. 477, 78 So. 383; Frederick v. Wilbourne, 198 Ala. 137, 73 So. 442; Henry v. Hall, 106 Ala. 84, 17 So. ......
  • Alabama Power Co. v. Stogner, 8 Div. 347.
    • United States
    • Alabama Supreme Court
    • December 14, 1922
    ...are not subject to administration, and are merely to be distributed to the beneficiaries named in the statute. Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882; Griswold v. Griswold, 111 Ala. 572, 577, 20 So. 437; Newell v. Bushard, 204 Ala. 73, 85 So. 274; Kennedy v. Davis, supra; White v......
  • Germann v. Matriss
    • United States
    • United States State Supreme Court (New Jersey)
    • January 19, 1970
    ...party--an agent authorized to bring the suit for the benefit of those individuals specified by the Legislature. Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882 (1921); Beauvais v. Springfield Institute For Savings, 303 Mass. 136, 20 N.E.2d 957, 124 A.L.R. 611 (1939); Tillinghast v. Maggs,......
  • Breed v. Atlanta, B. & C.R. Co., 6 Div. 809.
    • United States
    • Supreme Court of Alabama
    • June 5, 1941
    ...174 Ala. 213, 56 So. 912; White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A., [241 Ala. 643] N.S., 568; Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882. In Holt v. Stollenwerck, supra, the court speaking through Sayre, J., observed: "The right to prosecute an action for the wrongful death......
  • Request a trial to view additional results

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