Adkison v. Adkison , 286 Ala. 306 ( 1970 )

HARWOOD, Justice

(dissenting):

No clearer standard for the administration of law and justice may be found than that set forth in II Cor. 3:6:

“The letter killeth, but the spirit giveth life.”

Not only the spirit, but the plain concept of Sec. 119, Title 7, Code of Alabama 1940 (Wrongful Death Statute), is to give to the parent having the custody, control, and the responsibility of rearing, guiding, and caring for the child a cause of action for the death of the child caused by another’s tortious act. Implicit in the governing codal provisions (Secs. 118 and 119 of Title 7, Code of Alabama 1940), is that the cause of action vests in the parent exercising these duties — that is, that parent who is the true head of the household in which the child resides.

Here it had been judicially determined in the divorce proceedings that the appellant-father had abandoned his family. The custody of the two minor sons was awarded to the mother.

Although the father made payments for the support of the two minor children, these payments were made by virtue of, and under the compulsion of, a court decree.

I cannot see that these compelled support payments should be deemed to overcome, and render for naught, the overwhelming facts of this case that, in truth, and in fact, the mother-appellee was the real head of the family of which the deceased son was a member.

If contribution for support be made the chief and governing criteria for determining in whom the cause of action vests under Section 119, then we observe that in this case such a mechanistic rule would yet vest this cause of action in the mother. This for the reason that it is clearly infer-able from the record that the contributions made by the mother for the support of the two minor children exceeded substantially the contributions made by the father.

The reasoning of the Court of Civil Appeals, and the authorities in support thereof, sustain fully the conclusion reached by that court.

For the reasons expressed above, I would affirm the judgment of the Court of Civil Appeals.

MADDOX, J., concurs.