Shirley v. Shirley

• Decision Date: 25 February 1954
• Docket Number: 4 Div. 770
• Citation: 261 Ala. 100,73 So.2d 77
• Parties: SHIRLEY v. SHIRLEY.
• Court: Alabama Supreme Court

Page 77

73 So.2d 77

261 Ala. 100

SHIRLEY v. SHIRLEY.

4 Div. 770.

Supreme Court of Alabama.

Feb. 25, 1954.

Rehearing Denied May 27, 1954.

Chauncey Sparks, Eufaula, for appellant.

Jack W. Wallace, Clayton, Archie I. Grubb, Eufaula, for appellee.

PER CURIAM.

This is a suit by a mother for the wanton death of her minor child caused by another minor who died in the same accident two or three hours after the death of plaintiff's intestate.

The suit is authorized by section 119, Title 7 of the Code if the cause of action survived the death of defendant's intestate under the provisions of the Act (No. 737) approved September 5, 1951, General Acts 1951, page 1290, which amended section 150, Title 7, Code.

Prior to that amendment the cause of action would not have survived since section 150, Title 7, as it then existed, made actions on claims of that sort survive the death of defendant tortfeasor, except for injuries to the reputation. Section 153, Title 7, provided then and now for a revival of the action. That section therefore did not then include causes of action on which no suit had been instituted. Wynn v. Tallapoosa County Bank, 168 Ala. 469, 490-493, 53 So. 228.

The instant suit is by virtue of section 119, supra, and not section 123, Title 7. The latter section has continued to contain a provision that when a suit has been begun it is not abated by the death of defendant, but may be revived against his personal representative. Section 119 (by the parent of a deceased minor child) has never had that clause in it. But prior to the amendment of section 150 by the Act of 1951, supra, the question arose in a suit under section 119. After a full review of the authorities and a careful consideration of the statutes, this Court, with all the justices concurring, held that section 150 authorized a revival of a pending action under section 119 when the defendant tort-feasor had died. Ex parte Corder, 222 Ala. 694, 134 So. 130.

This holding was not thought to have been in the way of a later decision that a suit brought under section 121, Title 7, against the personal representative of the person liable under it was not justified by section 122, Title 7, although that statute provided then, as it does now, for the survival of the cause of action under section 121. At that time there was no statute which authorized the survival of a cause of action against a tortfeasor under section 119 or 123. It was thought by the Court that the provision of section 122 for the survival of the 'right of action' there referred to cases where the tortfeasor or the injured party had died from some cause other than that sued on and where the living had had a just demand against the living. Webb v. French, 228 Ala. 43, 152 So. 215.

Ex parte Corder, supra, was an action under section 119 as well as a cause of action by the father of a minor, wrongfully killed, against the living person who caused his death, and we held that on the death of the defendant tortfeasor the action was properly revived against his personal representative by virtue of section 150, supra, as it then stood.

So that prior to the amendment of 1951, supra, we had held that section 150 (5712) applied to section 119, supra, and was subject to revival under section 153 (5715). The latter section is primarily a provision for a revival when plaintiff or defendant dies pending the suit. Section 150, before the Act of 1951, had to do with the matter of the survival of an action after the death of a party. The Act of 1951, amending section 150, applies in terms to all causes of action as well as actions, still excepting injuries to the reputation. We see no reason why we should hold that section 150 as amended does not apply to section 119, supra, as before it was amended, or as for that matter to section 123, not here involved. We are not willing to limit its application to a situation where a living person has a claim for his personal injury against another living person as by section 121, supra. Sections 119 and 123, unlike section 121, do not provide a cause of action for an injury not causing death. In Webb v. French, supra, the court was dealing with a law, section 121, that provided damages for injuries not causing death.

If the injury caused death section 119 or 123 must be used as the facts justify. There might of course be created by law a cause of action against the tortfeasor who may have died later either from the same accident or some other cause. Under neither section 119 nor 123 is the estate of plaintiff's deceased benefited. Peoples v. Seamon, 249 Ala. 284, 31 So.2d 88; McWhorter Transfer Co. v. Peek, 232 Ala. 143, 167 So. 291. The circumstance that the damages are punitive (McWhorter v. Peek, supra), did not prevent a survival of a suit under section 119 by virtue of section 150 before it was amended, although the deceased tortfeasor could not then be punished by the court. We think the amendment should not prevent its application to the cause of action before suit, and, therefore, the amendment has application to all actions and causes of action not otherwise controlled. But that actions and causes of action under section 121 are controlled by section 122 as interpreted in Webb v. French, supra. There was no error by the trial court in so holding.

Counsel for appellant argues that the evidence is not sufficient to show that defendant's intestate wantonly caused the death of plaintiff's intestate, as required by the guest statute and as alleged in the complaint. Section 95, Title 36, Code. This insistence is first made on the theory that when the evidence does not sustain plaintiff's right to a judgment the court should render a judgment for defendant notwithstanding the verdict or without submitting the case to the jury. But this principle only applies when the complaint does not state a cause of action. Likewise, a judgment for plaintiff may be rendered when there is no plea of merit but the only issue is one taken on immaterial pleas. National Surety Co. v. First National Bank, 225 Ala. 108, 142 So. 414; City of Birmingham v. Andrews, 222 Ala. 362, 132 So. 877; Code, Title 7, § 570.

When the evidence is finished and plaintiff has failed to make any proof of all the essential features of his cause of action it is not prejudicial error for the court, without a written request as required by section 270, Title 7, Code, to direct a verdict for defendant. O'Bar v. Southern Life & Health Ins. Co., 232 Ala. 459(14), 168 So. 580.

On the other hand, it is not error for the court not to do so unless requested in writing. And if the jury finds for the plaintiff when the evidence does not prove his cause of action, the defendant's remedy is by a motion for a new trial, unless he had requested the affirmative charge before the jury retired and its refusal by the court. Section 276(6), Title 7, Code. This Court has no power to redress such a wrong unless a motion for a new trial is made on that ground. Alabama Great Southern R. R. Co. v. Powers, 73 Ala. 244(4), or otherwise brought to the attention of the trial court and there acted on.

The record shows both a refusal to grant a new trial on that ground and a refusal of the affirmative charge requested by defendant, so that the contention is properly presented.

There was no eye witness to the accident nor to the fact that defendant's intestate was driving the car, nor as to its speed. A statement of the evidence in appellant's brief is as follows:

'It is shown by the evidence that Clarence Ladell Shirley, Jr., and Ruth Shirley were both killed in a car wreck which occurred on the road between Clayton and Midway in Bullock County. Their death occurred very close together; Ruth Shirley having survived a few hours after the death of Clarence Ladell Shirley, Jr., but without gaining consciousness.

'There were no eye witnesses to the accident. The only people who know how the accident happened, what caused it, and who was driving the car are dead. The accident happened after dark on the evening of August 3, 1952. The only evidence offered by the plaintiff was the testimony of persons who went to the scene of the accident at varying times after it occurred. The bodies of the occupants were found in or near the road sometime after the accident. The deceased, Ruth Shirley, was found on the south side of the wrecked vehicle, (the car was going approximately north) and on the right side of the road. The body of the deceased, Clarence Ladell Shirley, Jr., was found north of the car and in the middle of the road.

'The only other evidence offered by the plaintiff, and to which the defendant objected, was who was driving the car when it left in the direction of the place of the accident, a distance of fifteen miles or more, and thirty or more minutes before; the testimony as to the scene of the accident by a neighbor who lived some quarter to one-half mile away, and testimony by the highway patrol who visited the scene after the injured had been moved.

'The action was commenced by the mother against the administrator of the estate of Ruth Shirley, deceased.

'The defendant offered no testimony, except brief cross examination of the plaintiff's witnesses.'

A statement of the evidence in appellee's brief is as follows:

'The evidence discloses that Clarence Ladell Shirley, Jr., resided in Clayton, Alabama, with his mother, Jena Shirley, and that he was a minor, being sixteen years of age on the date of August 3, 1952. Ruth Shirley resided in Louisville, Alabama, and on the date of August 3, 1952, she was in Clayton and invited Clarence Ladell Shirley, Jr., to ride with her to Midway, Alabama, on an automobile which had been left in her possession for the weekend by her father for her pleasure and the pleasure of anyone else she cared to invite to ride with her.

'Ruth Shirley and Clarence Ladell Shirley, Jr., left the home of the plaintiff on the automobile just before dark with the expressed intention of going to...