Kuykendall v. Edmondson, 8 Div. 235.

• Court: Supreme Court of Alabama
• Writing for the Court: MILLER, J.
• Citation: 205 Ala. 265,87 So. 882
• Parties: KUYKENDALL v EDMONDSON.
• Decision Date: 27 January 1921
• Docket Number: 8 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...