Spencer v. Malone Freight Lines, Inc.

• Decision Date: 27 June 1974
• Citation: 292 Ala. 582,298 So.2d 20
• Parties: Lyndel R. SPENCER et al. v. MALONE FREIGHT LINES, INC., et al. SC 411.
• Court: Alabama Supreme Court

Page 20

298 So.2d 20

292 Ala. 582

Lyndel R. SPENCER et al. v. MALONE FREIGHT LINES, INC., et al.

SC 411.

Supreme Court of Alabama.

June 27, 1974.

Rehearing Denied July 25, 1974.

Humphrey & Smith, Charles A. Phillips, Huntsville, for appellants.

Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellees.

McCALL, Justice.

The plaintiff, Lyndel R. Spencer, appeals from a judgment of voluntary nonsuit entered by the trial court on her motion which she maintains became necessary because of rulings by the court upon the pleadings that were adverse to her. An appeal is provided for by Code of Ala., Tit. 7, § 819.

The first assignment of error is: 'The trial court erred in overruling the appellants' motion to strike the answers of the defendants, as amended, said order being dated December 9, 1971.'

The matter of a motion to strike another party's pleading, or a part thereof, pursuant to Code of Ala., Tit. 7, § 213, on the ground that such is frivolous or unduly prolix, is one that remains in the sound discretion of the trial judge, whose ruling on appeal will not be reviewed in the absence of abuse. Davis v. Louisville & Nashville R. Co., 108 Ala. 660, 18 So. 687; Blumberg v. Speilberger, 209 Ala. 278, 96 So. 191; Mazer v. Brown, 259 Ala. 449, 66 So.2d 561; Clements v. Olive, 274 Ala. 210, 147 So.2d 818; Gulf American Fire & Casualty Co. v. Gowan, 283 Ala. 480, 218 So.2d 688. We find no error in the trial court's overruling the appellants' motion to strike.

Mrs. Spencer, the appellant, brought this action in two counts in the Circuit Court of Madison County, Alabama, joining as a non-consenting party plaintiff her former husband, Bert L. Spurlock, from whom she was divorced in Alabama. The complaint alleges the wrongful death of their minor daughter in Lincoln County, Tennessee, as the result of a motor vehicular accident. As a basis for recovery, the complaint pleads the Tennessee Code Annotated (referred to hereafter as T.C.A.), Tit. 20, § 607. This statute provides for a right of action for wrongful death and prescribes to whom this right shall pass.

The appellees, who are the defendants, pleaded, in their answer, as amended, the general issue and eleven special pleas. The sufficiency of the pleas was tested by the appellants' demurrer that was overruled. Thereupon, the appellants-plaintiffs filed a general replication, which joined issue on all the pleas, and interposed three special replications which plead matter relied on in answer to the special pleas. The appellees' demurrer to these special replications was sustained. The appellants moved for a voluntary nonsuit because of the adverse rulings on the demurrers to the pleas and the replications. The court entered judgment pursuant to the motion.

We have held that on an appeal from a judgment of voluntary nonsuit, we would review those rulings on pleadings which are stated to have superinduced the nonsuit. Where several adverse rulings have superinduced the nonsuit, we will consider all such rulings assigned for taking the nonsuit, provided error is properly assigned and sufficiently argued in brief. Berlin Machine Works v. Ewart Lumber Co., 184 Ala. 272, 63 So. 567; MacMahon v. City of Mobile, 253 Ala. 436, 44 So.2d 570. The record in this case sufficiently shows that the nonsuit was the result of the adverse rulings as to both the pleas and the replications.

The adverse rulings on the demurrer to the pleas is the subject of the appellants' second assignment of error, which reads as follows:

'2. The trial court erred in overruling the appellants' demurrer to the answers of the defendants, as amended, said order being dated July 29, 1972.'

In arguing for a reversal on the ground that overruling the appellants' demurrer to the appellees' special pleas 3, 4, 5, 6, 7, 8, 11 and 12, which are pleas of res judicata, was error, the appellants say that this really gets to the crux of the case, for it is clear from all of these pleas that the mother was not a party to the action which the father filed in Tennessee. That action was for the same alleged wrongful death upon which the father recovered a judgment that was paid. The appellants say that the question here is whether the mother was an indispensable party to the Tennessee litigation. The appellants request us to look to the merits of this case for the solution rather than to a hypertechnical procedure. In brief the appellants say: 'We earnestly request this Court to consider the merits of this case * * *.' In our opinion the appellant-mother was not an indispensable party to the action that the father filed in Tennessee for the wrongful death of their minor daughter.

The right of action created under T.C.A., Tit. 20, § 607 et seq., is transitory, Folkes v. Central of Georgia Ry. Co., 202 Ala. 376, 80 So. 458, Watford v. Alabama & Florida Lumber Co., 152 Ala. 178, 44 So. 567, and is of such character as properly may be brought in Alabama, a state other than where the injury causing the death occurred, namely, Tennessee, provided jurisdiction over the defendant can be legally obtained. Code of Ala., Tit. 7, § 97; Weaver v. Alabama Great Southern R. Co., 200 Ala. 432, 76 So. 364; Folkes v. Central of Georgia Ry. Co., supra.

Where the wrongful act that caused the injury or death occurred in another state, the courts of this state will look to the substantive law of that state to determine whether the defendant under that law has breached any legal duty to the injured party. Code of Ala., Tit. 7, § 97; Dawson v. Dawson, 224 Ala. 13, 138 So. 414; Larue v. C. G. Kershaw Contracting Co., 177 ala. 441, 59 So. 155; 4 Ala.L.Rev. 75, 77 (1951); Lane v. Lane, 240 Ala. 447, 199 So. 870. As a matter of law, the Alabama statute allowing recovery for a wrongful act causing death will not support an action where the wrongful act was committed in another state. Louisville & Nashville R. Co. v. Williams, 113 Ala. 402, 21 So. 938.

So to determine the question as to whether the mother was an indispensable party to the Tennessee case, we must turn to the applicable Tennessee statutes. The wrongful death statute of Tennessee may be found at T.C.A., Tit. 20, § 607. It reads as follows:

'20--607. Injury resulting in death--Succession to cause of action.--The right of action which a person, who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or killing by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished by his death, but shall pass to his widow, and, in case there is no widow, to his children or to his next of kin; or to his personal representative, for the benefit of his widow or next of kin; or to his natural parents or parent or next of kin if at the time of death decedent was in the custody of the natural parents or parent and had not been legally surrendered by them, otherwise to his or her legally adoptive parents or parent, or to the administrator for the use and benefit of the said adoptive parents or parent; the funds recovered in either case to be free from the claims of creditors. In the case of the death of a married woman, such right of action shall pass to the surviving husband. * * *'

It appears to us that the above statute gives the right of action and specifically designates the beneficiaries to whom the right shall pass, that is 'to his natural parents or parent or next of kin if at the time of death decedent was in the custody of the natural parents or parent * * *.'

In Memphis Street Ry. Co. v. Cooper, 203 Tenn. 425, 432, 313 S.W.2d 444, the court said:

'* * * This right of action is statutory (Sections 20--607, 20--608, 20--609, T.C.A.), so that both the action and the procedure for distribution of the proceeds of any recovery rests on the statute. Black v. Roberts, 172 Tenn. 20, 108 S.W.2d 1097.'

In Black v. Roberts, 172 Tenn. 20, 108 S.W.2d 1097, the Tennessee court concluded that the proceeds of recovery are to be distributed under what is presently T.C.A., Tit. 31, § 201, subdivision 4. In the opinion the court stated:

'The right of action for a wrongful killing is statutory and rests upon the statutes carried into the Code at section 8236 et seq. (Now T.C.A., Tit. 20, § 607 et seq.). These statutes not only create the right of action but provide how the proceeds of any recovery shall be distributed. Where the deceased leaves no husband, wife, or child, the proceeds of such recovery under the statute go to the next of kin 'free from the claims of the creditors of the deceased, to be distributed as in the case of the distribution of personal property.' Code, § 8238.

'In Haynes v. Walker, 111 Tenn. 106, 76 S.W. 902, 903, the statutes and earlier decisions were reviewed and the court said:

"A recovery upon such right of action, when realized, becomes personal property, and follows the usual course of distribution of personalty. Loague v. Railroad, 91 Tenn. 458, 461, 19 S.W. 430; Railroad v. Bean, 94 Tenn. 388, 29 S.W. 370.

"The parties who are entitled to take under the statutes of distribution are, in the contemplation of the other statutes referred to, the next of kin, and entitled to take the recovery according to the statutes relating to the distribution of personal estates.

"This cause of action is not only created by the statute, and dependent alone upon it, but the statute also provides how the proceeds of any recovery upon any such cause of action shall be distributed, and who shall be entitled thereto. It is in no sense an asset of the estate of the deceased, and does not and cannot pass by the will of the deceased, but only under the provisions of the statute, and as the personal property of an intestate, according to the provisions of section 4172 (section 8389, Code 1932) of Shannon's Compilation.'

'Section 8389 of the Code (now T.C.A., Tit. 31, § 201) provides for the distribution of the personal estate of an intestate. Such distribution was...