Suell v. Derricott

• Decision Date: 13 May 1909
• Citation: 161 Ala. 259,49 So. 895
• Parties: SUELL v. DERRICOTT ET AL.
• Court: Alabama Supreme Court

49 So. 895

161 Ala. 259

SUELL v. DERRICOTT ET AL.

Supreme Court of Alabama

May 13, 1909

Appeal from Circuit Court, Bibb County; B. M. Miller, Judge.

Action by E. G. Suell, administrator, against Fred. Derricott and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Logan Vandegraaff & Fuller, for appellant.

John T Ellison, Daniel Collier, and Percy & Benners, for appellees.

MAYFIELD J.

This action is by the appellant, as administrator, against the defendants (appellees), brought under section 27 of the Code of 1896, known as the "Homicide Act," to recover damages for the wrongful death of his son, who is alleged to have been killed by the defendants by unlawfully and intentionally shooting him with a gun or a pistol.

While this court has passed upon a great number of appeals in cases brought under this statute, this is one of the few in which the court is called upon to review a case in which the wrongful death complained of was the result of the intentional killing with a deadly weapon, and which, if without justification, would be murder. While we are not wholly without precedent in this, or other states and jurisdictions, the cases are far less numerous than those in which the death was the result of negligence, simple, gross or wanton. This court has construed this statute to be punitive in its nature and purpose, and not compensatory, and to provide that the damages recoverable be distributed under the laws of distribution as other personal property of the deceased, and that they are not liable to the payment of debts of the deceased. Statutes like ours were clearly intended to correct what was deemed a defect of the common law, that the right of action based on a tort or injury to the person died with the person. Our statute, as it now exists, was evidently in a large degree modeled after the English act of Parliament known as "Lord Campbell's Act," passed in the year 1846. It must be observed that the right of action is only given under this statute to the personal representative when the intestate could have maintained an action for the same act had it failed to produce death. A corollary of this is that, if the wrongful act complained of had not produced death, but only an injury, and the person injured could not have maintained an action, then the personal representative cannot maintain an action under the statute when death results. It would therefore seem to follow that all defenses available to the defendant, if the action had been brought by the person injured when death did not result, are available to the defendant in an action brought by the administrator of the person injured for the wrongful death; that the burden of proof, and the weight and sufficiency of the evidence, would be the same in both cases.

It is too well settled in this state to need citation of authority that contributory negligence on the part of the plaintiff is available as a defense where the injury is the result of simple negligence, and that it is not available as a defense when the injury is the result of wanton negligence or willful injury. A case decided by this court, something like the one in question, is that of King v. Henkie, 80 Ala. 505, 60 Am. Rep. 119, in which the court, through Somerville, J., decided that the action could not be maintained under the statute against a saloon keeper who sells or gives intoxicating liquors to a man of known intemperate habits who is helplessly drunk at the time, though the drinking of the intoxicant caused his death almost immediately. The reason assigned by the court was that, if death had not resulted, the person drinking could not have maintained an action for the wrongful act on the part of the defendant complained of, and that death and the injury was the result of drinking the intoxicant, and not the result of the sale or delivery to the person intoxicated. In fact, the court in that case held that the plaintiff's intestate was guilty of contributory negligence which resulted in the injury. In this the court was probably in error (though it is not necessary to be decided, and we do not decide the point). The wrongful act there complained of was a willful and intentional one, and the contributory negligence, if it existed, would have been no defense. We only cite or refer to this case on the proposition that the action can only be maintained by the administrator when the action could have been maintained by his intestate if death had not resulted. We have been unable to find any case, in this or any other court, in which the facts constituting the killing were similar to the facts in this case. While some of the defenses interposed in this case have been interposed in others, we have found no case in which all the defenses of this were so interposed.

For a clear understanding of the legal questions involved in this appeal, it may be well to state the substance of the evidence. While the evidence is not wholly undisputed, and different inferences therefrom might be drawn, the substance of the evidence showed, almost without conflict, that, on the night of the killing, the intestate and one Ed Riley had either broken into, or were attempting to break into, a storehouse, at Hargrove, Ala., containing goods, wares, merchandise, etc., which store belonged to the Cahaba Southern Mining Company, a corporation. The defendant Derricott was superintendent of the company, and had charge of the building referred to. The other defendant, Franklin, was the agent of the Southern Railway Company at the same place. Hargrove was a mining camp. The store referred to was a commissary. On the night of intestate's death, the defendant Franklin was awakened by his wife, about 12 or 1 o'clock, and told by her that she heard a noise like some one breaking into the store. Franklin got up, procured a pistol, went around to the commissary and saw two men, as he said, trying to break into the store. He fired his pistol twice into the air to frighten them away, but they did not leave. He then went to Derricott's house and told him of the circumstances. Derricott dressed and went with him to the store, as some of the evidence tended to show, with the intention of capturing or arresting the men. They carried a lantern, and turning the corner, in sight of the store, they saw a man standing near the wall of the store, with an object in his hand, said by the witnesses to look like a gun as best they could see. They also heard sounds, as they approached the store, like the ripping off of planks. As they so turned the corner of the store and saw the man, they called to him to stop. The man turned, bringing the object in his hand (said by them to resemble a gun) to point in the direction of the defendants, whereupon both of them fired, and the man fell dead. The deceased, on examination, proved to be plaintiff's intestate. It was soon perceived that another man was under the store, who, on being called to and assured that no harm would be done him, came out, proving to be Ed Riley. Riley was examined on the trial in behalf of the plaintiff. The substance of Riley's testimony was that he and the deceased had been drinking heavily, that they went to the store with an iron bar, and that deceased was breaking into the store, or had been attempting to break into it, with the iron bar; that when Franklin fired the first two shots they ran under the store, and that Suell only came out immediately before he was shot. It appeared that planks had been pulled off the store, and that through the cellar door a hole had been broken, as large as a man's head, and (inferentially, at least) that this was done with the iron bar Suell had in his hand at the time he was shot--the object which, as they say, defendants thought to be a gun. Neither of the defendants recognized Riley or deceased before the shooting or before the killing.

The complaint contained several counts charging, in different words, the unlawful and intentional killing of plaintiff's intestate, by shooting him with a gun or pistol. Demurrers to the complaint were interposed, but were finally withdrawn, and no question is raised as to the sufficiency of the complaint. To the complaint, the defendants filed the plea of the general issue, and a great number of special pleas of justification. Demurrers were sustained to all the pleas except 9, 10, 12, and 15, and were overruled as to these; consequently, these are the only pleas necessary to be considered on this appeal. Plea No. 9 in effect alleged that, at the time of the killing defendants were in the act of arresting intestate for the commission of a felony, and that they used no more force than was necessary. Plea No. 10 is substantially the same, except in alleging that they had reasonable cause to believe that intestate had committed a felony, instead of that he had actually committed it. Plea No. 12 alleged that the killing was necessary in order to arrest intestate and in order to prevent great bodily harm being done to defendants, and that at the time they killed intestate he was attempting to commit burglary in the presence of the defendants; while plea No. 15 set out the facts fully, averring that at the time they shot intestate they honestly believed that the iron bar which he had in his hand was a gun or rifle, that the motion he made towards them was a hostile one, that it was necessary to shoot, and that they did so to protect themselves, under the honest or reasonable apprehension of great bodily harm at the hands of intestate. So the defense relied upon, and the issues upon which the cause was tried, were, in short, self-defense, and second, that the killing was necessary to arrest a felon and to prevent the commission of a felony.

The trial resulted in a verdict and judgment...