Robinson v. Western Ry. of Alabama
Decision Date | 11 June 1942 |
Docket Number | 3 Div. 378. |
Citation | 9 So.2d 885,243 Ala. 278 |
Parties | ROBINSON v. WESTERN RY. OF ALABAMA. |
Court | Alabama Supreme Court |
Rehearing Denied Oct. 8, 1942.
John Sankey and Ball & Ball, all of Montgomery for appellant.
Steiner Crum & Weil, of Montgomery, for appellee.
This action is by the appellant as the administratrix of the estate of Henry Robinson, deceased, against the appellee Western Railway of Alabama, a corporation, for the wrongful death of said Robinson, deceased, under the Homicide Act Code of 1940, Title 7, § 123.
The complaint consists of two counts, Count 1-A, added by amendment, in case for negligently causing the death, and County 2, in trespass charging that "defendant by and through its duly authorized agent willfully and wantonly" caused said death. City Delivery Co. v Henry, 139 Ala. 161, 34 So. 389.
To this complaint the defendant, after demurrer overruled to said counts, filed, among others, plea 6, in words as follows:
The court overruled the plaintiff's demurrer to said plea, in consequence of which the plaintiff took a voluntary nonsuit, as authorized by the statute, and appealed. Code of 1940, Title 7, § 819; Ex parte Martin et al., 180 Ala. 620, 61 So. 905; Mi-Lady Cleaners v. McDaniel, 235 Ala. 469, 179 So. 908, 116 A.L.R. 639.
In Smith et al. v. Southern Ry. Co. et al., 237 Ala. 372, 187 So. 195, 197, the question of the right of the dependents of a deceased workman to maintain an action against a third party causing the death of the workman was considered, and it was there observed:
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...FOR WRONGFUL DEATH IS VESTED IN THE DEPENDENTS and not in a personal representative under Title 7, Section 123. Robinson v. Western Railroad of Alabama, 243 Ala. 278, 9 So.2d 885. Thus Title 26, Section 312, and Title 7, Section 123 are construed together. IF THE DECEASED IS AN EMPLOYEE COM......
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