Southern Ry. Co. v. Carlton

• Decision Date: 25 October 1928
• Docket Number: 6 Div. 10,30
• Citation: 218 Ala. 265,118 So. 458
• Parties: SOUTHERN RY. CO. v. CARLTON.
• Court: Alabama Supreme Court

118 So. 458

218 Ala. 265

SOUTHERN RY. CO. v. CARLTON.

6 Div. 10, 30

Supreme Court of Alabama

October 25, 1928

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for damages by Adeline Carlton against the Southern Railway Company and the Glen Iris Dairy Company. From a judgment granting plaintiff's motion for new trial as to defendant Southern Railway Company and denying motion as to defendant Glen Iris Dairy Company, defendant Southern Railway Company appeals, and plaintiff brings cross-appeal. Affirmed on both appeals.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

W.A Denson, of Birmingham, for appellee and cross-appellant.

Joseph P. Mudd, of Birmingham, for appellee Glen Iris Dairy Co.

BOULDIN J.

The suit is by the mother of a minor child to recover damages for his death by wrongful act. Code, § 5695.

Certain counts of the complaint base the mother's right to maintain the action on averments that the father had deserted his family. Code, § 5694. Other counts, upon averments that the child was of illegitimate birth.

A verdict having been rendered for defendants, a new trial was granted as to defendant Southern Railway Company, on motion of plaintiff. The appeal is from this judgment.

Counsel for appellant greatly reduce the labors of the court by presenting only two questions going to the right of plaintiff to recover in any event. These questions are:

First. May the mother of a bastard minor child maintain the action for his death by wrongful act under Code, § 5695, or is the right of action limited to the personal representative under section 5696?

Second. Was there evidence of desertion by the father making a case for the jury on counts basing the mother's right to sue on his desertion of the family?

On the first proposition appellant insists that "minor child," within the meaning of sections 5694 and 5695, is a legitimate child only.

These sections, standing alone, shed no special light on this inquiry.

Section 5694 deals with the right of action of the parent for injuries to the minor child; its main purpose being to name the party plaintiff in such action in the several events therein mentioned.

Section 5695 creates a new cause of action for death of a minor child by wrongful act. It defines the cases in which the parent or personal representative shall sue. As between father and mother, this section refers back to the preceding section. Under this statute the damages are punitive, such as the jury may assess. A suit under the act is made a bar to an action by a personal representative under section 5696. Louisville & N.R. Co. v. Cross, 205 Ala. 626, 88 So. 908; Louisville & N.R. Co. v. Phillips, 202 Ala. 502, 80 So. 790; Louisville & N.R. Co. v. Bogue, 177 Ala. 349, 58 So. 392.

Section 5696, the Homicide Act, is an inclusive statute, conferring upon a personal representative of a decedent, whether a minor child or not, a right of action for death by wrongful act. It is a punitive statute, and admittedly is unaffected by any circumstance of birth of the victim.

However, the recovery is not a part of decedent's estate in the ordinary sense, but the personal representative is a statutory agent or trustee to sue for the benefit of those entitled to take under the statute of distributions.

Every illegitimate chid is the heir of the mother, as if born in lawful wedlock. Code, § 7371.

The mother, or kindred on the part of the mother, are entitled to inherit the estate of an illegitimate in default of issue of his body. Code, § 7372.

These statutes, with some modification, date back to 1824; are much older than those above considered. Much has been written as to the purpose of these statutes in removing the severities of the common law as to the bastard.

As related to property rights, he was without kindred, without inheritable blood, could not take by inheritance nor transmit by inheritance save to issue of his own body. Such consequences visited on him who was without fault as to his coming into the world, such statutes intend to modify.

That the benefit of same should extend to the mother, a particeps criminis in bringing him into the world, is not so apparent. Still, his right to accumulate property to descend to the natural mother or his kindred through her, is one of the benefits conferred by our statutes upon the illegitimate.

So, in the case before us, if decedent was an illegitimate child, the recovery in an action by the personal representative would inure one half to the benefit of the mother and the other half to his bothers and sisters through her. Ward v. Matthews, 122 Ala. 188, 25 So. 50.

It seems to be the policy of section 5695, as now framed, to permit the parent of a minor child, entitled to take under the law, to sue directly in his or her own right for his death by wrongful act, in preference to the statutory agent under the succeeding section.

It seems illogical to hold an illegitimate child is a child of his mother for purposes of a suit for her benefit but not her child within the statute authorizing direct suit by her.

In Foster v. Lee, 172 Ala. 32, 55 So. 125, Ann.Cas.1913C, 1335, it was held the inheritable blood of the illegitimate extends to his children and grandchildren, who are entitled to inherit direct from his mother. In course of the opinion by Mr. Justice Somerville, it was said:

"And, if it be inquired why in express terms they failed to make the bastard and his descendants the heirs of his mother, the obvious answer is that by their very terms they make the bastard as much the child and heir of his mother as if he were born in lawful wedlock; that is, fully legitimates him for the purpose of heirship and succession, and as though he never were a bastard."

By parity of reasoning we conclude he is so far legitimated as to be a "minor child" of his mother within the meaning of section 5695.

This conclusion is in harmony with the weight of modern authority construing similar statutes.

We cite, without review, the following wherein other cases may be found. Goldmyer v. Van Bibber, 130 Wash. 8, 225 P. 821; Hadley v. Tallahassee, 67 Fla. 436, 65 So. 545, Ann.Cas.1916C, 719 and note 720; Marshall v. Wabash R. Co., 120 Mo. 275, 25 S.W. 179; Galveston, H. & S.A.R. Co. v. Walker, 48 Tex.Civ.App. 52, 106 S.W. 705; Kenney v. Seaboard Air Line R. Co., 167 N.C. 14, 82 S.E. 968, Ann.Cas.1916E, 450; Thompson v. Del., L. & W.R. Co., 41 Pa.Super Ct. 617; Wheeler v. Southern R. Co., 111 Miss. 528, 71 So. 812; Croft v. Southern Cotton Oil Co., 83 S.C. 232, 65 S.E. 216; 17 C.J. 1220.

We take up the second inquiry, viz: Whether under the evidence a jury case was made on those counts basing the mother's right to sue upon allegations that the father had deserted his family.

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