Breed v. Atlanta, B. C. R. Co. , 241 Ala. 640 ( 1941 )

I am unable to concur. The majority view in effect overrules Ex parte Adams, 216 Ala. 241, 113 So. 235, and in my humble judgment runs counter to the construction of our homicide statute as found in Suell v. Derricott, 161 Ala. 259,49 So. 895, 897, 23 L.R.A., N.S., 996, 18 Ann.Cas. 636 and Lawrence v. Seay, 179 Ala. 386, 60 So. 937. In these cases it was expressly stated: "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". Of course, under our statute (Section 5293, Code 1923, Code 1940, Tit. 61, § 3), had injury not resulted in death there would have been no right of action whatever. Quick v. Western Railway of Alabama, 207 Ala. 376, 92 So. 608.

In Holmes v. King, 216 Ala. 412, 113 So. 274, 275, the Court said: " 'Civil death' of a person in the literal sense, as known at common law, was the extinction of civil rights and relations, so that his estate passed to his heirs as if dead in fact." And as said in 14 Corpus Juris Secundum, p. 1155, the term civil death "imports a deprivation of all rights whose exercise or enjoyment depends on some provision of positive law". See also Owens v. Auto Mutual Indemnity Co., 235 Ala. 9,177 So. 133, the reasoning of which lends support to these dissenting views. And in Vol. 4, Restatement of the Law of Torts, § 925, is the following: "Actions for Causing Death. Although the death statutes create a new cause of action (i.e. one not known at common law), both they and the survival statutes are dependent upon the rights of the deceased. Hence where no action could have been brought by the deceased had he not been killed, no right of action exists."

The cases of Osburn, Keister's Adm'r v. Keisler's Ex'rs,123 Va. 157, 96 S.E. 315, 1 A.L.R. 439, and Wilson v. Brown, Tex.Civ.App., 154 S.W.2d 322, may likewise be noted in support of this view.

Under our statute it is clear enough the deceased had no "substantive civil right", to use the language of the Virginia Court in the Osburn case [123 Va. 157, 96 S.E. 316, 1 A.L.R. 439], the invasion or breach of which could be said to give rise to a cause of action, under the facts here alleged, and the personal representative can have no greater right than had the decedent.

True, as argued in the majority opinion, the proviso in the statute had no reference to the individual. But it does have reference to the cause of action. There must have been a cause of action in the injured person. Indeed in Lawrence v. Seay, supra, this Court, speaking of this very statute, said [179 Ala. 386, 60 So. 939]: "The statute, therefore, clearly shows that it is like a continuation of the same action [italics supplied], if one had been brought by the deceased."

In the cases relied upon by the majority there was a cause of action, there were those who had civil rights subject to invasion. These cases are, therefore, not at all analogous. Here the life convict had no civil rights subject to invasion, and no cause of action arose, to be continued, as was the object of this statute. The prevailing view apparently ignores the forceful language of the Suell and Lawrence cases, supra, though the Court was engaged in a clear and definite construction of our homicide statute, with particular reference to the original purpose. And to reach such a conclusion our comparatively recent case of Ex parte Adams, supra, is overruled.

Nor is the case of Owens v. Auto Mutual Indemnity Company,235 Ala. 9, 177 So. 133, decided as late as 1937, opinion being by Mr. Justice Thomas, to be so lightly disposed of as does the prevailing opinion in this case. The mere statement that "the effect of the holding in that case was the asserted liability was not within the coverage of the policy", does not tell the whole story. This for the reason that back of that holding and as its foundation was the deliberate conclusion of the court that such non-liability of the insurance company was the result of the fact that the minor himself, under the common law, could not have maintained an action against his parent. In other words there was no right of action in the personal representative under Section 5695, Code of 1923 for the reason that, under the common law, the minor would not have had a right of action against the parent had death not ensued. And this conclusion was reached notwithstanding the statute under which the action was brought did not contain the condition set forth in Section 5696, here involved: "if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death".

I respectfully submit that in principle the Owen's case is likewise overruled, if logic and consistency are not to be disregarded. The Owens case has been considered sound law and was so accepted by counsel for appellant, without application for rehearing. The two cases cannot, with due regard to consistency, stand together. The opinion by the Texas Court in Wilson v. Brown, supra, fully supports the Owens case and contains a very full and clear discussion of the question therein involved.

The opinion in the instant case further states the right of action is not "derivative". True, the statute creates a new right. But the very purpose of the statute as often stated in our cases, notably Suell v. Derricott, 161 Ala. 259, 49 So. 895 897, 23 L.R.A., N.S., 996, 18 Ann.Cas. 636, refutes the statement that the right of action is not derivative. It has its very origin in the right of action which the intestate had if death had not intervened. No plainer statement of the purpose of the statute can be found than in the Suell case, where it is said:

"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."

All of our cases are to like effect and a holding that the right of action is not only new but wholly independent is, I respectfully insist, in the teeth of the very language of the statute and the decisions giving it construction.

The very case of King v. Henkie, 80 Ala. 505, 60 Am.Rep. 119, cited by the Court in the instant case, points to the same purpose where it is said:

"The purpose of this, and like legislation, was clearly to correct a defect of the common law, by a rule of which it was well settled, that a right of action based on a tort or injury to the person, died with the person injured. Under the maxim 'Actio personalis moritur cum persona,' the personal representative of a deceased person could maintain no action for loss or damage resulting from his death. * * *

"These statutes, it will be observed, each give a right of action only in cases where the deceased himself, if the injury had not resulted in his death, might have sustained a recovery. They continue, in other words, for the benefit of specific distributees 'a right of action which, at the common law, would have terminated at the death, and enlarge its scope to embrace the injury resulting from the death.' Cooley on Torts, 264."

And, as previously noted, the Court in Lawrence v. Seay, supra, expressly stated of this statute that "it is like a continuation of the same action, if one had been brought by the deceased".

To like effect is the decision in Michigan C. R. Co. v. Vreeland, 227 U.S. 59, 33 S. Ct. 192, 196, 57 L. Ed. 417, Ann.Cas. 1914C, 176, where the court said:

"As the foundation of the right of action is the original wrongful injury to the decedent, it has been generally held that the new action is a right dependent upon the existence of a right in the decedent immediately before his death to have maintained an action for his wrongful injury."

And the concluding sentence in 25 C.J.S., Death, § 24, cited and quoted in the majority opinion, is as follows:

"They mean that the wrong in the first instance shall give rise to a cause of action".

And what is a cause of action is well stated by the Virginia court in Osburn, Keister's Adm'r v. Keisler's Ex'rs, 123 Va. 157, 96 S.E. 315, 316, 1 A.L.R. 439, as follows:

"In approaching this question, we have to bear in mind the elementary principle that a right of action at law can in no case exist unless: (a) The plaintiff be found to have had, at the time the alleged cause of action arose, a substantive civil right, the breach or invasion of which right (constituting in the case of a tort a civil wrong) gave rise to a cause of action; and (b) the plaintiff be found to have had at the time the action is instituted a civil remedy by action at law."

But plaintiff's intestate could have had no cause of action by virtue of our statute which declared him civilly dead. Civil death is defined in Holmes v. King, 216 Ala. 412, 113 So. 274,275, in quotation from Quick v. Western Ry. Co. of Alabama,207 Ala. 376, 92 So. 608, as follows:

"Civilly dead is the state of a person who, although possessing natural life, has lost all his civil rights and as to them is considered dead. 11 C.J. 794. One result of civil death is incapacity to sue in the courts."

And the Holmes case proceeds to point out that under our statute the estate of one thus civilly dead is subject to administration and distribution as if actually dead in fact. In any event it is clear enough one thus civilly dead is incapacitated from suing in the courts. He had lost all civil rights and of consequence has no such right subject to invasion.

Confessedly here plaintiff's intestate had no right of action, and the facts and circumstances could not give rise to a cause of action for the simple reason there existed no civil rights subject to invasion. To say the homicide statute does not deal with civil rights is to deny this is a civil suit. Of course, no one will contend that this is not a civil suit. As said by the New York Court in Littlewood v. New York, 89 N.Y. 24,42 Am.Rep. 271, speaking of a statute of this character: "[The] main purpose was to deprive the wrong-doer of the immunity from civil liability". (Italics supplied.) And while the damages are punitive, yet in the Sullivan case 59 Ala. 272, the author of the opinion remarks: "The damages, 'tis true, go to the estate of the party slain, and, in effect, are compensatory".

The result of the holding is also that there may be two administrations on one estate, the first while the convict is yet alive and under sentence, and the second after his death by wrongful act. That may work out in the end, but to say the least, it presents a novel situation.

If the right of action under the homicide statute is not derivative then what becomes of the doctrine of contributory negligence? Or would the court say for one moment that one receiving an injury could not accept full settlement therefor and relieve the tort feasor of all further liability, though death should subsequently ensue?

This very question was presented in Southern Bell Tel. Tel. Co. v. Cassin et al., 111 Ga. 575, 36 S.E. 881, 50 L.R.A. 694, Hill v. Pennsylvania Ry. Co., 178 Pa. 223, 35 A. 997, 35 L.R.A. 196, 56 Am. St. Rep. 754, and Thompson v. Fort Worth Rio Grande Ry. Co., 87 Tex. 590, 80 S.W. 990, 1 Ann.Cas. 231, and the holding was in each case that such settlement and release was binding and conclusive and barred any subsequent suit under statutes of this character.

As to the authorities relied upon by the majority the cited case of Savannah Memphis Railroad Co. v. Shearer, Admr'x,58 Ala. 672, is merely to the effect that damages recoverable under the homicide statute are punitive and are assessed to prevent homicides. Of course this is now well understood and was considered as a settled proposition in Richmond Danville Railway Co. v. Freeman, 97 Ala. 289, 11 So. 800, containing full discussion.

I am unable to see wherein these two cases, relied upon by the majority in any manner support the conclusion reached. Stress is laid upon South North R. R. Co. v. Sullivan,59 Ala. 272, with quotations from the opinion. But when the quoted language is viewed in the light of the questions there considered, its inapplicability to the present case becomes perfectly plain. There the deceased was a married woman, and the holding was that the personal representative of her estate could maintain the suit as the statute expressly so provided, and that the language of the statute hereinabove quoted had no reference to the individual or person by whom the suit could be maintained. That had been provided for by the naming of the personal representative. And the opinion further states that the language does have reference to the act or omission which would support the action, for that act or omission must give rise to a cause of action. The married woman in the Sullivan case possessed civil rights and a suit was maintainable for the vindication of any invasion of such rights, and whether in her name or jointly with her husband was immaterial.

The point is that the facts and circumstances gave rise to a cause of action and the questions therein discussed had reference only to procedural matters. Certainly nothing said in that case can be construed as overriding the language of the statute and our decisions to the effect that the deceased himself must originally have had a cause of action. Here confessedly he had none. He could have maintained no suit, of which the present one would be a "continuation", to use the language of Lawrence v. Seay, supra.

It seems clear enough the statement in the opinion that the right is not derivative cannot stand. And yet to so hold is necessary to sustain the ruling here. For, if derivative, there can be no right of action because plaintiff's intestate had no such right.

The cases upon which the majority rely were speaking of persons who had a right of action, as they had civil rights subject to invasion, and the language used must, of course, be considered in the light of the facts prevailing in each case. So considered, they have no substantial tendency to support the conclusion reached.

The opinion speaks of the natural right to life, which of course is recognized by all. But a life convict also has the natural right not to be wrongfully injured, not to be made to suffer the loss of eyesight or his limbs or be made an invalid the remainder of his days. These are valuable natural rights likewise. And yet, under our "civil death" statute confessedly he could recover nothing. The difference is one of degree only, and the distinction sought to be made cannot stand in the full light of sound reasoning. It may be the civil death statute is a harsh one and should be modified or repealed. But with that we are not here concerned. As said by Justice Sayre in Johnson v. Johnson, 201 Ala. 41, 77 So. 335, 337, 6 A.L.R. 1031, "It must still be conceded that it is not for the courts by sudden strokes of policy to make deep innovations upon the established law."

It is illogical to say that the injured life convict, maimed and suffering, can have no recovery so long as there remains in his body a flicker of life, but that the moment the flame goes out and life is extinct, there suddenly arises a cause of action in the administrator to recover damages for the very wrong, a redress of which was denied the convict while yet in life. No such result was intended.

With the humanitarian aspect of the prevailing opinion there may be entire sympathy. But that is a matter for consideration of the law makers. It is not our function here.

However we may indulge in refinement of reasoning, the fact remains this is a civil suit (1 C.J. 950, 1 C.J.S., Actions, § 1), to recover damages for the death of one civilly dead and who had no civil rights subject to invasion.

It is noted that the majority view is entirely without supporting authorities. And indeed the very fact that no such action appears to have been heretofore brought to a court of last resort is to my mind rather persuasive that the legal profession has considered any such suit foreclosed by the language of the statute and opinions of the court construing the same.

But I forego further discussion and respectfully dissent.