McWhorter Transfer Co. v. Peek

• Decision Date: 09 April 1936
• Docket Number: 7 Div. 357
• Citation: 167 So. 291,232 Ala. 143
• Parties: McWHORTER TRANSFER CO. et al. v. PEEK.
• Court: Alabama Supreme Court

167 So. 291

232 Ala. 143

McWHORTER TRANSFER CO. et al. v. PEEK.

7 Div. 357

Supreme Court of Alabama

April 9, 1936

Appeal from Circuit Court, DeKalb County; A.E. Hawkins, Judge.

Action under homicide act by J.C. Peek, as administrator of the estate of J.B. Stout, deceased, against the McWhorter Transfer Company and Builder's & Manufacturer's Mutual Casualty Company. From a judgment for plaintiff defendants appeal.

Affirmed.

Isbell & Beck, of Fort Payne, for appellants.

Baker &amp Baker, of Fort Payne, for appellees.

BOULDIN Justice.

Action in damages for wrongful death under the homicide act. Code, § 5696.

The deceased, J.B. Stout, came to his death from a collision of an automobile in which he was riding with a truck driven by W.L. McWhorter, operating under the name of McWhorter Transfer Company.

Builder's & Manufacturer's Mutual Casualty Company, a foreign corporation, was made party defendant, as surety for the McWhorter Transfer Company by virtue of an insurance policy issued in lieu of a bond under section 13 of the Motor Carrier Act of 1931 (Acts 1931, p. 312).

There was no error in overruling the demurrer to the complaint for misjoinder, or in sustaining demurrers to plea in abatement No. 2. Fidelity & Casualty Co. of New York v. Jacks (Ala.Sup.) 165 So. 242. No demurrer is addressed to the sufficiency of the complaint in referring to the bond in general terms as a "public liability and property damage bond."

Defendants filed a plea in abatement setting up that the deceased was a minor at the time of his death; that his father was dead, but he left a mother living; that this suit, brought by an administrator, was premature, in that six months had not elapsed. It is further alleged that the mother, within the six months' period, brought suit in a court of competent jurisdiction in Hamilton county, Tenn., to recover for the death of her minor child under Code, § 5695, which suit was still pending.

Clearly only one cause of action exists for death by wrongful act. Unless the parent has waived priority under Code, § 5695 (which may be done by himself, or herself, qualifying as administrator, and suing as such, Alabama Fuel & Iron Co v. Denson, 208 Ala. 337, 94 So. 311), it may be conceded a suit by the personal representative is premature, and demurrer to the pleas in abatement should have been overruled.

But plaintiff interposed what was styled an "answer" to such plea, setting up that the deceased was a married man, left surviving a wife, who is the sole distributee of his personal estate.

After demurrer sustained to the plea, this pleading, in the nature of an amendment to the complaint, remained.

Evidence on this issue was introduced without objection, and without dispute disclosed that deceased, while under 21 years of age, was married at the time he came to his death; his wife survives; her father qualified as administrator, and brings this suit.

In such case, does the cause of action arise under section 5695 in favor of the mother, or under section 5696, in favor of the wife, the sole distributee?

This question does not seem to have been before this court. Appellee cites and relies upon McWhorter et al. v. Gibson (Tenn.App.) 84 S.W.2d 108.

In that case the Court of Appeals of Tennessee dealt with the action brought by the mother in Hamilton county, Tenn., under our statute, Code, § 5695, growing out of this same death. That case, in a well-reasoned opinion, held no cause of action arose in favor of the mother under section 5695, but under section 5696, for the benefit of the surviving wife, and dismissed the cause.

No question of estoppel is presented by the pleadings before us growing out of a successful defense of the Tennessee suit on the ground stated, and the inconsistent position taken by defendants in the Alabama suit.

But the case is properly cited, and is to be considered as other authorities in construing our statutes.

Code, § 5695, under which a suit for death of a minor child may, under named conditions, be maintained by the mother, makes special reference to both the preceding section, 5694, and the succeeding section, 5696. Both these are much older statutes. Section 5694 confers on the father, if living, and occupying the usual relations to his family, a right of action for personal injuries to his minor child, a member of the family. Damages, under this section, include loss of services of the child from the injury, time lost in nursing, etc. McNamara et al. v. Logan, 100 Ala. 187, 14 So. 175; Woodward Iron Co. v. Curl, 153 Ala. 205, 44 So. 974.

If the father, however, has deserted his family, or is in the penitentiary for a term of two years, or confined in the insane asylum, or adjudged insane, he has no right of action, but such right of action is in the mother of the minor, if living.

Very clearly this statute recognizes the common-law obligation of the father touching the maintenance, education, and care of his minor child, a member of his family, and, in return, the right of the father to the services of such child. When the father has deserted the family, or become unable, from causes enumerated, to perform these parental obligations, he loses such right of action, and a right of action accrues to the mother.

Section 5695 creates the right of action for death in favor of the father, or in favor of the mother, in the same events named in the preceding section. This is to say, the father has no right of action for death of his minor child if he has, by desertion or disability named, ceased to perform the parental duty...