Webb v. French
| Decision Date | 11 January 1934 |
| Docket Number | 6 Div. 414. |
| Citation | 152 So. 215,228 Ala. 43 |
| Parties | WEBB v. FRENCH. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Cullman County; James E. Horton, Judge.
Action for damages by Odie Webb, as administrator of the estate of Nellie Webb Stewart, deceased, against Eunice French, as executrix of the estate of Hawkins Westmoreland, deceased. From a judgment of nonsuit, plaintiff appeals.
Affirmed.
See also, 225 Ala. 617, 144 So. 818.
James & Stewart, of Cullman, for appellant.
B. F Smith, of Birmingham, for appellee.
Two automobiles, running upon a public highway, come into collision with each other. A person riding in one of the cars is killed. The driver of the other car is fatally injured and dies within a few hours.
The personal representative of the estate of the former sues the personal representative of the estate of the latter claiming damages for death by wrongful act. Defendant interposes by way of plea that no cause of action survives in such case.
The trial court holds the plea good; whereupon the plaintiff takes a nonsuit for adverse rulings and appeals. Such is the case before us.
The original counts were filed under the homicide statute. As to these it seems to be conceded that, while this statute (Code, § 5712) provides the action shall not abate by the death of a party, and may be revived in favor of and against the personal representative, this is a remedial provision touching pending suits, and does not keep alive a right of action against his estate, so that suit may be brought in the first instance against an executor or administrator of the estate of the tort-feasor. Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228; Ex parte Corder, 222 Ala. 694, 134 So. 130; Stoer v. Ocklawaha River Farms Co., 223 Ala. 690, 138 So. 270; 1 Corpus Juris, 176; Ex parte Liddon, 225 Ala. 683, 145 So. 144.
Count A seeks to present a case under Code, §§ 5674, 5675, which read:
These statutes have not been heretofore construed. They are a codification of section 8 of the Act of August 25, 1909, Acts 1909, p. 63.
This act, one of the companion prohibition bills of that special session, covers more than thirty pages, and, broadly speaking, may be deemed a prohibition enforcement measure.
The construction of section 8, divided into two sections in the Code, is not free from difficulty. The first portion, now section 5674 of the Code, creates a cause of action against the bootlegger (to use a modern term) for personal injuries to third persons at the hands of one to whom the bootlegger has furnished prohibited liquor and the injury is the proximate consequence of intoxication from such liquor.
It would seem the right of action runs in favor of two classes of persons:
(1) The person injured in person or property.
(2) Wife, child, parent, or other person (a dependent maybe) who has been injured through loss of means of support because of personal injury to the person furnishing the means of support.
The damages recoverable are expressly declared to be the "damages actually sustained, as well as exemplary damages."
The basis of the action is actual damages, nominal at least, with exemplary damages added at the discretion of the jury, because of willfulness, wantonness, aggravation, etc., under general law. 4 Michie's Digest, p. 649, § 70. In this, such action differs from suits under the Homicide Act.
Appellant relies upon section 5675, as giving a right of action for death by wrongful act against the person inflicting the injury in consequence of his intoxication, and, in case of his death before suit, a cause of action against his personal representative.
This statute...
To continue reading
Request your trial
-
Martin v. Watts
...that the action lay only against one in the business --albeit, the illegal business --of selling liquor. Thus, in Webb v. French, 228 Ala. 43, 152 So. 215 (1934), after first noting that the Act had come into existence as part of a sweeping 'prohibition enforcement measure,' the Alabama Sup......
- Johnson Controls, Inc. v. Liberty Mut. Ins. Co.
-
Ex parte Biddle, 8 Div. 661
...10, 1933, but it was within six months after January 10, 1933. This Court considered the merits of that appeal as shown in Webb v. French, 228 Ala. 43, 152 So. 215, in which no reference was made to the fact that more than six months had expired from the date of the judgment as amended, whi......
-
McIsaac v. Monte Carlo Club, Inc.
...& Beck, Inc., 511 So.2d 159, 161 (Ala.1987). This Court, commenting on the intent and purpose of the 1909 Act in Webb v. French, 228 Ala. 43, 44-45, 152 So. 215, 216-17, (1934), stated the following: "This act, one of the companion prohibition bills of that special session, covers more than......