Taylor v. City of Clanton
Decision Date | 02 March 1944 |
Docket Number | 5 Div. 377. |
Citation | 245 Ala. 671,18 So.2d 369 |
Parties | TAYLOR v. CITY OF CLANTON. |
Court | Alabama Supreme Court |
Rehearing Denied June 22, 1944.
J. B. Atkinson and Reynolds & Reynolds, all of Clanton, for appellant.
Gerald & Gerald, of Clanton, for appellee.
Suit by Julia Belle Taylor against the City of Clanton, Alabama, a municipal corporation. The complaint contains four counts. Demurrers were sustained to all four counts, and the plaintiff in the court below took a nonsuit, and appealed.
The suit is prosecuted under and by virtue of the provisions of section 119, Title 7, Code of 1940, which reads as follows:
"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 cases mentioned in the preceding section; or if the father and mother both dead, or if they decline to bring the action or fail to do so within six months from the death of the minor, the personal representative of such minor may sue, and in any case shall recover such damages as the jury may assess; but a suit by any one of them for the wrongful death of the minor shall be a bar to another action either under this section or under section 123 of this title."
Counts 1, 2 and 3 rested for recovery upon the wrongful employment by defendant of the plaintiff's minor son to engage in dangerous work, without plaintiff's consent, and his injury and death as a consequence thereof. In respect to the questions presented counts 1, 2 and 3 are the same. Count 1 is as follows:
Count 4 rested for recovery upon the negligence of defendant's agent, servant or employee, while acting within the line and scope of his authority, and is as follows:
Appellee insists that the trial court's ruling in sustaining the demurrer was without error, first, because of appellant's failure to allege a compliance with section 504, Title 37, Code of 1940. In other words, that the failure of the personal representative of the deceased minor to file the claim with the city barred the cause of action. Section 504, supra, reads as follows:
"No recovery shall be had against any city or town, on a claim for personal injury received, unless a sworn statement be filed with the clerk, by the party injured, or his personal representative, in case of his death, stating substantially the manner in which the injury was received, and the day and time, and the place where the accident occurred, and the damages claimed."
The writer has serious doubt that a personal representative may maintain an action under the provisions of section 119, Title 7, Code of 1940. The reason is, section 123, Title 7, Code of 1940, gives to the personal representative the right to maintain an action for the wrongful death of a minor as well as the right to maintain an action for the wrongful death of an adult; and section 123, supra, was enacted long prior to the adoption of section 119, supra. As said by Justice McClellan, in Lovell v. De Bardelaben Coal & Iron Co., 90 Ala. 13, 7 So. 756, 757, in reference to section 2588, Code of 1886 (now section 119, supra)...
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