Sloss-Sheffield Steel & Iron Co. v. Drane

Decision Date31 March 1908
Docket Number1,516.
PartiesSLOSS-SHEFFIELD STEEL & IRON CO. v. DRANE.
CourtU.S. Court of Appeals — Fifth Circuit

On Rehearing, April 20, 1908.

R. W Walker and Jno. P. Tillman, for plaintiff in error.

Travis Williams, for defendant in error.

Before McCORMICK, Circuit Judge, and NEWMAN and BURNS, District judges.

McCORMICK Circuit Judge.

This was a suit by Polk Drane, the defendant in error, to recover damages for the death of his minor son, Carleton Drane, who was alleged to have been employed by the defendant without the plaintiff's knowledge or consent. Each count of the complaint alleges that the minor was employed without the knowledge and consent of the father, and put to work in a dangerous place. There was a judgment in favor of the plaintiff. The plaintiff in error assigns as errors the action of the trial court in overruling demurrers to the complaint, in sustaining demurrers to pleas interposed by the defendant, in declining to give the affirmative charge requested by the defendant, and in giving certain instructions to the jury, to which exceptions were reserved by the defendant.

The demurrers to the complaint were properly overruled. If the trial court erred in his action on the demurrers to any of the pleas (which we do not affirm), we are satisfied from our view of the whole case that it was an error without injury as the pleas stricken were not supported by any proof, and the record affirmatively shows that all of the evidence that could have been offered or did exist was admitted under the general issue. On the issue as to whether the minor was a member of the plaintiff's family up to the time the injuries were received, the jury were properly instructed and the proof on this issue was sufficient to sustain their verdict. The trial court did not err in declining to give the affirmative charge requested by the defendant. Whether it erred in giving certain instructions to the jury touching the measure of damages, to which exceptions were reserved by the defendant, is a question which has received studious consideration, and calls for ampler treatment.

The statutes of Alabama provide:

'A father, or (in certain cases) the mother, may sue for an injury to a minor child, a member of the family. ' Section 25, Code 1896. 'When the death of a minor child is caused by the wrongful act, or omission, or negligence of any person or persons, or corporation, his or their servants or agents, the father, or the mother, in the cases mentioned in the preceding section, or the personal representative of such minor, may sue and recover such damages as the jury may assess; but a suit by the father or mother in such case is a bar to a suit by the personal representative. ' Section 26. 'A personal representative may maintain an action, and recover such damages as the jury may assess for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death; * * * and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distribution. ' Section 27, Code 1896 The Legislature of Alabama passed an act 'to prevent homicides,' approved February 21, 1860, which provided:
'That, when the death of a person is unlawfully caused by another, the personal representative of the deceased may maintain an action against the latter at any time within two years thereafter, and may recover such sum as the jury deem just, and the amount so recovered shall be distributed as the personal property of an intestate is now distributed, and shall not be subject to the payment of the debts of the deceased. ' Laws 1859-60, p. 42.

The author of the Revised Code, made some years after the passage of this act, overlooked it, and omitted to embrace it in his revision, and retained several sections of the previous law which the omitted statute has repealed. To remedy this oversight, and to restore the statute, 'the Legislature, at the session of 1871-2, re-enacted the statute 'to prevent homicides,' with the same title, and, in all material respects, in language identical with that employed in the act of February 21, 1860. ' Laws 1871-72, p. 83; Railroad v. Shearer, 58 Ala. 678. Immediately after the re-enactment on February 5, 1872, of the act 'To prevent homicides,' the Legislature provided by statute that, 'When the death of any minor child is caused by the wrongful act or omission of any officer or agent of an incorporated company, or private association of persons, the father of such child, or if the father be not living, the mother, may maintain an action against such corporation or private association of persons, for such wrongful act or omission, and may recover such damages as the jury may assess. ' This act, for reasons given in the opinion of the court, was held to be unconstitutional in the case of Smith v. Railroad, 75 Ala. 449. Soon thereafter the Legislature passed the act, the provisions of which are now embraced in section 26, above set out. The act 'To prevent homicides' applied as well to infants as adults, but it did not, as construed by the courts, create any right of action in the father or mother, and, as soon as this became sufficiently known, the law now in force was passed (Acts 1884-5, p. 99), the sole purpose and effect of which was to extend the right of action already lodged in the personal representative to the father, and, in certain contingencies, to the mother. And while there is no express limitation in this statute to cases in which recovery might have been had by the party injured, had not death ensued, the decisions in Alabama measure the father's recovery under this section of the Code by a consideration of what the child's right would have been had he survived, at least to the extent of confining the former to cases in which the latter might have recovered, though not extending it to all such cases. The only effect which section 26 of the Code had is to give the father, and, in the contingencies named in section 25, the mother, or the personal representative, of a minor whose death has been caused by wrong and negligence, the right to recover damages, and to confine the personal representative's right to cases where neither the father nor mother has instituted suit. The parent cannot sue at all on a cause of action arising under the employer's liability act. Sections 1749-51, Code 1896; McNamara v. Logan, 100 Ala. 187, 14 So. 175.

The group of statutory enactments in Alabama, to which we have referred, are all, to some degree, in derogation of the common law. The habit of thought in the professional legal mind, both on the bench and at the bar, receives its trend from the classic, and almost sacred, rules and canons of the common law. The opening words of the trial judge's charge to the jury, 'At common law in England and in this country no action can lay at all for the death of a human being,' constitute a 'proof-text' or a known or admitted major premise in most judicial and professional reasoning on this subject, and the reason which he gives also stamps its complexion on such discussions. He says, 'The idea was that the injury was merged in the felony. ' Touching the terms of one of these statutes, we find in an early case (1883) this language:

'The statute is highly penal in its terms, and must be construed as a penal statute.' 75 Ala. 449.

In a later case (1898), this language occurs:

'But while the damages recoverable are undoubtedly, under our former rulings, punitive in their nature, and not compensatory, they are not, in a strict sense, a penalty, nor is the action penal, or quasi-criminal, within the meaning of the constitutional provisions as above construed. The statute is remedial, and not penal, and was designed as well to give a right of action where none existed before, as to 'prevent homicides,' and the action given is purely civil in its nature for the redress of private, and not public wrongs. ' So. Ry. Co. v. Bush, 122 Ala. 489, 26 So. 168.

The cases arising in Alabama on or under these statutes are numerous. We note in the margin those which we have examined and considered. [1]

The very able and distinguished counsel for the plaintiff in error urges in his printed brief, as he did in his oral argument, that the ruling of the trial court on the question we are now considering is directly opposed to the decision in the case of Williams v. S. & N.A.R.R. Co., 91 Ala. 635, 9 So. 77. He insisted with confidence before us in his oral argument, as he also does in his brief, that 'In that case the court expressly limited the recoverable damages to compensation to the father for the loss of the minor's services. ' And the counsel for the defendant in error in his brief concedes that the case of Williams seems to assert a different doctrine from that for which the defendant in error here contends.

With much diffidence we feel constrained to announce our belief that the authority of the case of Williams does not go to the extent claimed. And to show and support our view, we will summarize more largely than is usual with us the report of that case. We begin with the syllabus, which, in substance and almost literally, is as follows:

'1. Under the statute defining the liability of the master (or employer) for injuries to the servant (or employe) while in the service, the right of action for injuries which result in death is given only to the personal representative of the decedent, but a right of action is given to the
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3 cases
  • Petition of M/V Elaine Jones
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 18, 1973
    ...on the theory that punitive damages are recoverable under the state's wrongful death statute. See, e. g., Sloss-Sheffield Steel & Iron Co. v. Drane, 160 F. 780 (5th Cir. 1908); Leahy v. Morgan, 275 F.Supp. 424 (N.D.Iowa 1967). California recognizes psychic injury as an element of damages, b......
  • In re Sincere Navigation Corporation
    • United States
    • U.S. District Court — Eastern District of Louisiana
    • June 23, 1971
    ...227 U.S. 59, 33 S.Ct. 192, 196, 57 L.Ed. 419 (1913). 15 States that permit recovery for sentimental loss: Alabama, Sloss-Sheffield Steel & Iron Co. v. Drane, 5 Cir. 1908, 160 F. 780 (The theory of Alabama damages is to penalize the defendant not compensate the plaintiff. See, Comment, Wrong......
  • Union Pacific R. Co. v. Williams
    • United States
    • Texas Supreme Court
    • June 6, 2002
    ...e.g., Pacific Met. Life Ins. Co. v. Haslip, 499 U.S. 1, 22 n. 11, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991); Sloss-Sheffield Steel & Iron Co. v. Drane, 160 F. 780, 790 (5th Cir.1908). Cf. Keever, 888 S.W.2d at 792; Reinhardt, 291 S.W. at 875-76; Buchanan, 84 S.W. at 1076. Accordingly, Union Paci......

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