This is an action on the case by the appellant as the administrator of Joe Breed, deceased, for his wrongful death under § 5696 of the Code, 1923, Code 1940, Tit. 7, § 123.
Counts one and two of the complaint aver, in short, that while said Joe Breed was in the act of crossing the defendant's railroad track, he was run against and killed by a train of the defendant, and that his death was proximately caused by the negligence of defendant's servants or agents while acting within the scope of their employment in the operation of said train. The third count, otherwise the same as the other two, charges that said death was caused by the "wanton, wilful, or intentional conduct of the servants or agents" in causing said train to run against said intestate.
The defendant filed pleas in abatement alleging that at the time of said intestate's death he was a convict under life sentence to the penitentiary in Alabama.
The plaintiff's demurrer to said pleas, assigning thirty grounds, was overruled; the plaintiff because of said ruling took a nonsuit, authorized by § 6431, of the Code of 1923, Code 1940, Tit. 7, § 819, and appealed.
The argument for appellee is that in consequence of his conviction and sentence to life imprisonment said intestate was civiliter mortuus, and therefore deprived of all civil rights including the right to redress for civil injury resulting from the defendant's delict, and therefore under the condition in the statute "if the testator or intestate could have maintainedan action for such wrongful act, omission, or negligence, if ithad not caused death," the life of said intestate was not within the protective provision of the statute, and the plaintiff was without legal right to sue. [Italics supplied.]
The statute, Code of 1923, § 5293, Code 1940, Tit. 61, § 3, modifies and reaffirms the common law to the effect that a conviction and sentence to life imprisonment, constitutes civil death — that state of a person who, although possessing natural life, has lost all his civil rights and as to them is civilly dead. Holmes v. King, 216 Ala. 412, 113 So. 274; Quick v. Western Ry. of Alabama, 207 Ala. 376, 92 So. 608.
The answer to appellee's contention is that Code, § 5696, does not deal with the civil rights of persons whose death is caused by "wrongful act, omission, or negligence." It deals with the natural right of life which is in no way affected by a conviction and sentence to life imprisonment. The very sentence and judgment of the court imposing it recognizes and confirms the right of the convict to life. The purpose and scope of our statute, Code 1923, § 5696, whatever the rule may be elsewhere, is to protect human life; to prevent homicides by wrongful act, omission or negligence of persons and corporations, their agents and servants; and to stimulate diligence in the protection of the natural right to live, without respect to the personal condition or disability of the person so protected. Savannah Memphis Railroad Co. v. Shearer, Adm'x, 58 Ala. 672; South North Alabama Railroad Company v. Sullivan, Adm'r,59 Ala. 272; Richmond Danville Railroad Company v. Freeman,97 Ala. 289, 11 So. 800.
In the case first above cited, decided at the December Term, 1877, construing the act of February 5, 1872, now § 5696 of the Code, this court speaking through Stone, J., afterwards for many years Chief Justice, observed: "Lacerated feelings of surviving relations, and mere capacity of deceased to make money if permitted to live, do not constitute the measure of recovery under the act of Feb. 5, 1872. Prevention of homicide is the purpose of the statute, and this it proposes to accomplish by such pecuniary mulct as the jury 'deem just.' The damages are punitive, and they are none the less so, in consequence of the direction the statute gives to the damages when recovered. They are assessed against the railroad 'to prevent homicides.' "
In the Sullivan case, supra, the court speaking through the brain and pen of the same great jurist observed: "Commenting on the act 'to prevent homicides,' of February 5, 1872, Pamph.Acts 83, we, in Savannah Memphis Railroad Company v. Shearer, said, in effect, that the purpose and result of the suit therein provided were not a mere solatium to the wounded feelings of surviving relations, nor compensation for the last earnings of the slain. We think the statute has a wider aim and scope. It is punitive in its purposes. Punitive of the person or corporation by which the wrong is done, to stimulate diligence and to check violence, in order thereby to give greater security to human life; 'to prevent homicides.' And it is none the less punitive because of the direction the statute gives to the damages recovered. * * * Preservation of life — prevention of its destruction by the wrongful acts or omission of another, — is the subject of the statute; and all its provisions are but machinery for carrying it into effect."
This interpretation and application of the statute was restated and reaffirmed in Richmond Danville Railroad Company v. Freeman, supra, and the statute has been brought through the several Codes since that time to the present without change.
The right of action which the statute gives is a new right, not derivative nor the right of succession to the person slain. It is not a right of property, and the personal representative in bringing and prosecuting the suit acts as an agent of legislative appointment for the effectuation of the public policy it declares — the prevention of homicides. Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912; White v. Ward, 157 Ala. 345,47 So. 166, 18 L.R.A., N.S.,
568; Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882.
In Holt v. Stollenwerck, supra, the court speaking through Sayre, J., observed: "The right to prosecute an action for the wrongful death of his decedent is vested by the statute creating the right (Code, § 2486) in the personal representative for a definite legislative purpose, to prevent homicide. In prosecuting such action, the personal representative does not act strictly in his capacity as administrator of the estate of his decedent, because he is not proceeding to reduce to possession the estate of his decedent, but rather he is asserting a right arising after his death, and because the damages recovered are not subject to the payment of the debts or liabilities of the decedent. He acts rather as an agent of legislative appointment for the effectuation of the legislative policy, and upon recovery as a quasi trustee for those who stand in the relation of distributees to the estate strictly so called. White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A., N.S., 568. And the right is vested in the personal representative alone."
Harking back, more than a half of a century, we find that Justice Stone, in Sullivan's case said: "This provision of the statute can not be carried out, unless we allow the personal representative of the person whose death was caused by the 'wrongful act or omission of another,' to bring the suit. The statute creates the right — a right unknown to the common law — and provides a remedy.
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This is an action on the case by the appellant as the administrator of Joe Breed, deceased, for his wrongful death under § 5696 of the Code, 1923, Code 1940, Tit. 7, § 123.
Counts one and two of the complaint aver, in short, that while said Joe Breed was in the act of crossing the defendant's railroad track, he was run against and killed by a train of the defendant, and that his death was proximately caused by the negligence of defendant's servants or agents while acting within the scope of their employment in the operation of said train. The third count, otherwise the same as the other two, charges that said death was caused by the "wanton, wilful, or intentional conduct of the servants or agents" in causing said train to run against said intestate.
The defendant filed pleas in abatement alleging that at the time of said intestate's death he was a convict under life sentence to the penitentiary in Alabama.
The plaintiff's demurrer to said pleas, assigning thirty grounds, was overruled; the plaintiff because of said ruling took a nonsuit, authorized by § 6431, of the Code of 1923, Code 1940, Tit. 7, § 819, and appealed.
The argument for appellee is that in consequence of his conviction and sentence to life imprisonment said intestate was civiliter mortuus, and therefore deprived of all civil rights including the right to redress for civil injury resulting from the defendant's delict, and therefore under the condition in the statute "if the testator or intestate could have maintainedan action for such wrongful act, omission, or negligence, if ithad not caused death," the life of said intestate was not within the protective provision of the statute, and the plaintiff was without legal right to sue. [Italics supplied.]
The statute, Code of 1923, § 5293, Code 1940, Tit. 61, § 3, modifies and reaffirms the common law to the effect that a conviction and sentence to life imprisonment, constitutes civil death — that state of a person who, although possessing natural life, has lost all his civil rights and as to them is civilly dead. Holmes v. King, 216 Ala. 412, 113 So. 274; Quick v. Western Ry. of Alabama, 207 Ala. 376, 92 So. 608.
The answer to appellee's contention is that Code, § 5696, does not deal with the civil rights of persons whose death is caused by "wrongful act, omission, or negligence." It deals with the natural right of life which is in no way affected by a conviction and sentence to life imprisonment. The very sentence and judgment of the court imposing it recognizes and confirms the right of the convict to life. The purpose and scope of our statute, Code 1923, § 5696, whatever the rule may be elsewhere, is to protect human life; to prevent homicides by wrongful act, omission or negligence of persons and corporations, their agents and servants; and to stimulate diligence in the protection of the natural right to live, without respect to the personal condition or disability of the person so protected. Savannah Memphis Railroad Co. v. Shearer, Adm'x, 58 Ala. 672; South North Alabama Railroad Company v. Sullivan, Adm'r,59 Ala. 272; Richmond Danville Railroad Company v. Freeman,97 Ala. 289, 11 So. 800.
In the case first above cited, decided at the December Term, 1877, construing the act of February 5, 1872, now § 5696 of the Code, this court speaking through Stone, J., afterwards for many years Chief Justice, observed: "Lacerated feelings of surviving relations, and mere capacity of deceased to make money if permitted to live, do not constitute the measure of recovery under the act of Feb. 5, 1872. Prevention of homicide is the purpose of the statute, and this it proposes to accomplish by such pecuniary mulct as the jury 'deem just.' The damages are punitive, and they are none the less so, in consequence of the direction the statute gives to the damages when recovered. They are assessed against the railroad 'to prevent homicides.' "
In the Sullivan case, supra, the court speaking through the brain and pen of the same great jurist observed: "Commenting on the act 'to prevent homicides,' of February 5, 1872, Pamph.Acts 83, we, in Savannah Memphis Railroad Company v. Shearer, said, in effect, that the purpose and result of the suit therein provided were not a mere solatium to the wounded feelings of surviving relations, nor compensation for the last earnings of the slain. We think the statute has a wider aim and scope. It is punitive in its purposes. Punitive of the person or corporation by which the wrong is done, to stimulate diligence and to check violence, in order thereby to give greater security to human life; 'to prevent homicides.' And it is none the less punitive because of the direction the statute gives to the damages recovered. * * * Preservation of life — prevention of its destruction by the wrongful acts or omission of another, — is the subject of the statute; and all its provisions are but machinery for carrying it into effect."
This interpretation and application of the statute was restated and reaffirmed in Richmond Danville Railroad Company v. Freeman, supra, and the statute has been brought through the several Codes since that time to the present without change.
The right of action which the statute gives is a new right, not derivative nor the right of succession to the person slain. It is not a right of property, and the personal representative in bringing and prosecuting the suit acts as an agent of legislative appointment for the effectuation of the public policy it declares — the prevention of homicides. Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912; White v. Ward, 157 Ala. 345,47 So. 166, 18 L.R.A., N.S.,
568; Kuykendall v. Edmondson, 205 Ala. 265, 87 So. 882.
In Holt v. Stollenwerck, supra, the court speaking through Sayre, J., observed: "The right to prosecute an action for the wrongful death of his decedent is vested by the statute creating the right (Code, § 2486) in the personal representative for a definite legislative purpose, to prevent homicide. In prosecuting such action, the personal representative does not act strictly in his capacity as administrator of the estate of his decedent, because he is not proceeding to reduce to possession the estate of his decedent, but rather he is asserting a right arising after his death, and because the damages recovered are not subject to the payment of the debts or liabilities of the decedent. He acts rather as an agent of legislative appointment for the effectuation of the legislative policy, and upon recovery as a quasi trustee for those who stand in the relation of distributees to the estate strictly so called. White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A., N.S., 568. And the right is vested in the personal representative alone."
Harking back, more than a half of a century, we find that Justice Stone, in Sullivan's case said: "This provision of the statute can not be carried out, unless we allow the personal representative of the person whose death was caused by the 'wrongful act or omission of another,' to bring the suit. The statute creates the right — a right unknown to the common law — and provides a remedy. * * * Hence, if we hold that the personal representative of a married woman can not maintain an action under this statute, we deny all redress for the killing of married women by the wrongful act or omission of another. * * * It is here contended that the wife, if living, could not have maintained an action in her own name, without joining her husband as co-plaintiff, and that her personal representative can not sue. We do not think this is either the object or sense of the clause referred to. The language, 'if the former could have maintained an action against the latter for the same act or omission, had it failed to produce death,' was intended todeclare the character of act or omission which would supportthe action; not the person by whom it could be maintained. That had already been provided for in the declaration that the personal representative should sue." [Italics supplied.]
This interpretation of the statute was reaffirmed in King, Adm'x, v. Henkie et al., 80 Ala. 505, 509, 60 Am.Rep. 119, in the following language: "The condition that the action must be one which could have been maintained by the deceased had it failed to produce death, or had not death ensued, has no reference to the nature of the loss or injury sustained, or the person entitled to recover, but to the circumstances attending the injury, and the nature of the wrongful act or omission which is made the basis of the action. Saunders on Negligence, 219; South North Alabama R. R. Co. v. Sullivan, 59 Ala. 272,281. As said in Whitford v. Panama R. R. Co., 23 N.Y. 465, where a similar phrase in the New York statutes was construed, it 'is inserted solely for the purpose of defining the kind and degrees of delinquency with which the defendant must be chargeable in order to subject him to the action.' "
These decisions have been made the basis of the text in 8 R.C.L. p. 746, § 38. We quote: "It is usually held, however, that the condition that the action must be one which could have been maintained by the deceased had it failed to produce death, or had not death ensued, has no reference to the nature of the loss or injury sustained, or the person entitled to recover, but to the circumstances attending the injury, and the nature of the wrongful act or omission which is made the basis of the action. As stated by one court in construing this condition, it was inserted in the statute solely for the purpose of defining the kind and degrees of delinquency with which the defendant must be chargeable in order to subject him to the action."
And in 16 American Jurisprudence, p. 63, § 82, it is stated: "It is usually held that the condition that the action be one which could have been maintained by the deceased if death had not ensued has no reference to the loss or injury sustained orthe person entitled to recover, but to the circumstances attending the injury and the nature of the wrongful act or omission which is made the basis of the action. As stated by one court in construing this condition, it was inserted in the statute solely for the purpose of defining the kind and degrees of delinquency with which the defendant must be chargeable in order to subject him to the action." [Italics supplied.]
Cited as supporting this text is our case of King v. Henkie,80 Ala. 505, 60 Am.Rep. 119, and cases from Indiana, Mississippi and South Dakota. It is also supported by Whitford v. Panama R. R. Co., 23 N.Y. 465.
The text in 25 C.J.S., Death, § 24 states: "The words common to many statutes limiting recovery to cases in which the injured person would have been entitled to maintain an action if death had not ensued are to be construed as defining the character of the injury and the circumstances under which it was inflicted. They mean that the wrong in the first instance shall give rise to a cause of action." King v. Henkie, 80 Ala. 505, 60 Am.Rep. 119, and cases from Michigan, New York, Indiana and England [Pym, Administratrix v. Great Northern Railway Company, 2 Best Smith, Q. B., 759] are cited as supporting the text.
If the facts and circumstances give rise to a cause of action, the civil disability of the person whose death is caused does not, as held in King v. Henkie, supra, affect the right of such person's administrator to sue for his wrongful death.
That decision was rendered at the December Term, 1886, and the statute as interpreted in these early decisions has been brought through the several Codes since that date without change, and it now speaks in the language of these Alabama decisions. Spooney v. State, 217 Ala. 219, 115 So. 308.
The appellee cites and relies on Lawrence et al. v. Seay,179 Ala. 386, 60 So. 937; Northern Alabama Railway Company v. Guttery, 189 Ala. 604, 66 So. 580; Suell v. Derricott et al.,161 Ala. 259, 49 So. 895, 23 L.R.A., N.S., 996, 18 Ann.Cas. 636; Williams v. Alabama Great Southern Ry. Co., 158 Ala. 396,48 So. 485, 17 Ann. Cas. 516; Ex parte Adams, 216 Ala. 241, 242,113 So. 235; and Owens v. Auto Mut. Indemnity Co. et al.,235 Ala. 9, 177 So. 133.
The question presented by the ruling of the court on the demurrer to defendant's pleas was not the question in any of the cited cases. The question discussed in the two first cited cases deals with the character and quality of the act necessary to bring the case stated within the homicide statute. The first dealt with the sufficiency of the complaint on demurrer thereto, and in the second the question presented, to state it in the language of the opinion, was [189 Ala. 604, 66 So. 582]: "The pleaded theory of defendant's responsibility and accountability for Guttery's death comprehends the assertion that for the wrongful or negligent acts or omissions of the Mobile Ohio Railroad Company, resulting in the damnifying consequences averred, in the use of the defendant's tracks, facilities, etc., under contract between them, the defendant is liable."
Suell v. Derricott et al., supra, involved the right of the defendants to set up self-defense where the killing was accomplished in an attempt to arrest the deceased who was in the act of committing burglary on property in the custody of the defendants.
Williams v. Alabama Great Southern Ry. Co., supra, was an action under the Employer's Liability Act, commenced three years after the injury, death resulting approximately two years after the injury. The question was whether or not the action to recover compensatory damages was barred by the statute of limitations of one year. The holding was that the right of action in the administrator was by succession to the existing right of the injured employee, and we quote from the opinion [158 Ala. 396, 48 So. 486, 17 Ann.Cas. 516]: " 'In the view we take of the statute, the right to be enforced is not an original one, springing into existence from the death of the intestate, but is one having a previous existence, with theincident of survivorship, derived from the statute itself.' " [Italics supplied.]
This rule of succession was applied by the court in Ex parte Adams, supra, in sustaining a plea in abatement filed under § 5657 of the Code of 1923, Code 1940, Tit. 7, § 146, setting up the pendency of a suit brought by the plaintiff's intestate before her death, in abatement of the action by the administrator, under the Homicide Act. The substance of the holding was that the action by the intestate for false imprisonment, assault and abuse, in which she sought compensatory damages, was the same as the cause of action under the Homicide Act, and that the administrator stood in the shoes of his intestate. This ruling is in conflict with Bruce v. Collier, 221 Ala. 22, 127 So. 553, 554, where it was observed:
"At the time of the passage of our statute to prevent homicide, and on down to the Code of 1907, our statute defining what actions survive, read:
" 'Actions survive to and against representative. — All actions on contracts, express or implied, all personal actions, except for injuries to the person or reputation, survive in favor of and against the personal representatives.' Code of 1896, § 35(2600) (2920) (2555) (2157).
"During all this period actions for personal injury, whether or not death ensued from the injury, did not survive to his administrator. In this state of the law the Homicide Act was passed creating a new cause of action, punitive in character, for the benefit of the next of kin entitled to take as distributees of his estate.
"In the Code of 1907, (section 2496) the above-quoted statute was amended by striking out the words 'person or,' so that now actions for 'injuries to the person' do survive. Does this mean injuries causing death, those covered by the Homicide Act?We think not. There is a clear field for the operation of this amendment in cases where pending a suit for personal injury the plaintiff dies from other cause than the injury sued for;" and ignores the consistent interpretation of the statute — the Homicide Act — that the right of action given by it is a new right; unknown to common law, and did not come into existence until death ensued from the wrongful act, omission or negligence. [Italics supplied].
16 Am.Jur. p. 48, § 61 states: "The view which is believed to be based upon the better reasoning that wrongful death statutes are not 'survival statutes,' but create a new cause of action, is the one supported by the courts generally and by the later trend of authority in particular."
This is the rule of our decisions. Kennedy v. Davis, 171 Ala. 609,55 So. 104, Ann.Cas.1913B, 225; White v. Ward, supra.
Owens v. Auto Mut. Indemnity Co. et al., supra, was a suit on an insurance policy, and the effect of the holding in that case was that the asserted liability was not within the coverage of the policy. See, Mi-Lady Cleaners v. McDaniel, 235 Ala. 469,472, 179 So. 908, 116 A.L.R. 646, note.
We, therefore, hold that while the plaintiff's intestate was deprived of his civil rights by the conviction and life sentence to the penitentiary, said conviction did not deprive him of the right to life, and his life was within the protection of the Homicide Act. The court, therefore, erred in overruling the plaintiff's demurrer to the several pleas.
The judgment of nonsuit is therefore set aside and vacated; the judgment and ruling of the Circuit Court is reversed and the cause is remanded.
Reversed and remanded.
THOMAS, BOULDIN, and LIVINGSTON, JJ., concur.
GARDNER, C. J., and FOSTER, J., dissent.
On Rehearing.