Hull v. Wimberly & Thomas Hdw. Co.

SIMPSON, J. — This action is brought by the appellant, as administrator of the estate of Charlie Hull, deceased, for the death of said Charlie Hull, under the Employer’s Liability Act (Code 1907, §§ 3910-3913), with counts also on the common-law liability. The defendants filed a plea alleging that William J. Hull, the plaintiff in this case, who is also the father of the deceased, Charlie Hull, who at the time of his death was a member of the family of said William J. Hull, had previously brought suit against the defendant in this case for damages for the death of his said minor son, in which he recovered a judgment, which has been fully paid. The complaint in the former case, and the amendment thereto, are attached as exhibits to said plea, the first count being for employing the plaintiff’s said son in a hazardous business, without his consent; — 541 — the second, for that his said son, haying been employed without the consent of the father, was placed in a dangerous and hazardous place to work, to wit, at or near an unguarded elevator shaft, and, though inexperienced, was not warned of the danger, so that he fell therein and was killed. Each of these counts claimed for-lost services. The third count alleged that plaintiff’s minor son was in the service or employment of the defendant, and that the injury resulted from the failure of the defendant- to provide a safe place for him to work. The fourth count also alleged that said minor son was an employee and that his death resulted from the failure of said defendant to properly guard the elevator shaft. The fifth count alleged the negligence to be in the defendant company’s agents’, servants’, or employees’ willfully, wantonly, or intentionally allowing said elevator shaft to be unprotected, with knowledge that said minor would probably be killed or seriously injured. The sixth count alleged that the death occurred by reason of the negligence of a person in the service or employment of the defendant, who had superintendence intrusted to him, etc. The court overruled a demurrer to said plea, which forms the basis for the only assignment of error; the plaintiff having taken a non-suit with bill of exceptions, and appealed. Section 2485 of our present Code gives the right of action for the death of a minor, caused by wrongful act, to the father or mother, or, if they fail to act within six months, “the personal representative of such minor may sue, and in any case shall recover such damages as the jury- may assess; but suit by any one of them * * * shall be a bar to another action either under this section or under the succeeding section.” The next succeeding section (2486), which gives the right to the personal representative to sue for wrong — 542 — ful death, in all cases where “the testator or intestate could have maintained an action * * * if it had not caused death.” Section 3912, in the chapter in our Code on “Employer and Employee,” provides that, if the injury to a servant or employee results in death, his personal representative is entitled to maintain the action, and provides that the damages recovered shall be distributed according to the statute of distributions. This court has held that the effect of the Employer’s Liability Act is to designate the only person who can sue for the death of an employee, to wit, the administrator. — Lovell v. DeBardelaben C. & I. Co., 90 Ala. 13, 18, 7 South. 756. The appellant argues that, as the administrator is the only person who can sue under the Employer’s Law, and the parent cannot, a suit by the parent cannot be res judicata as to a subsequent suit by the administrator. The history of section 2485 may furnish some light on the proper interpretation of it. In 1885 a general act was passed providing that, when personal injury or death of a minor was caused by wrongful act, the father or mother, or in case of their death the légal representative, could maintain the action, “provided, that but one suit shall be maintained for the said injuries or death.” Acts 1884-85, p. 99. At that time the parent’s common-law right of action for injury, and the Homicide Act, were in existence, and the Employer’s Liability Act was before the Legislature, and passed a short time thereafter. The writer' is free to confess that, if it were a new question, he would be disposed to hold that that was a general act, applying to all cases of death by wrongful act; but the law is otherwise, as above stated, to the effect that it did not confer the — 543 — right on the parent to sue under the Employer’s Act. Nevertheless, the proviso is clear to'the effect that while an administrator might, before the passage of the act, sue under the Homicide Act and under the Employer’s Act, yet the Legislature now confers the right of action on the parent first, next on the administrator, “provided that but one suit” (of any hind) “shall be maintained for the said injuries or death.” This act was substantially carried into section 25S8 of the Code of 1886, and section 26 of the Code of 1896, stating, in the place of the words of the proviso, that “a suit by the father or mother, in such case, is a bar to a suit by the personal representative.” Then comes our present section 2485 of the Code of 1907, fixing the conditions under which the personal representative may sue, to wit, after the parents have failed for six months to sue, and providing that a suit by either shall bar the other “either under this section or under the succeeding section. As stated by this court: “The sole purpose and effect of this statute was to extend the right already lodged in the personal representative, to the father, and in certain contingencies to the mother” (Lovell v. DeBardelaben C. & I. Co., 90 Ala. 16, 7 South. 757); and we may add that the provisos, in various forms, were e\idently to make it clear that in thus conferring the right on the parent it should not create a multiplicity of suits on the same cause of action, but the policy was and is that, as the parent is supposed to be the one having the greatest interest, to let the parent have the direction and control of the entire matter. If the parent prefers to bring an action for his own benefit, let bim do so; if not, let him turn it over to the administrator, and said administrator may then bring any form of action that may seem best to him. The last clause of the — 544 — statute as it now stands was evidently added out of abundant precaution; inasmuch as the Homicide Act is (under our decisions) sui generis, it might be thought that the general rule of the preceding statute did not apply to it. The appellant suggests that our decision in Williams v. S. & N. Ala. R. R. Co., 91 Ala. 635, 9 South. 77, that the damages in suits under section 2485, Code of 1907, are compensatory only, is erroneous; that the damages should be the same as under the succeeding (Homicide) statute. . It is true that this court has recently held that the expression in the Williams Gase is a dictum, and not binding; also that, in suits under said section 2485, the damages are punitive and not compensatory. — L. & N. R. R. Co. v. Bogue, 177 Ala. 349, 58 South. 392. The writer, on careful examination does not agree with the conclusion in that case, because he does not see how the remark in the Williams Gase can be said to be dictum, when the whole case was before the court, and the remark in question was a part of the instruction of the court to the court below for the trial of the case on reversal; and because, also, after the Williams Gase had been quoted with approval in several other cases, the statute has been readopted with the construction on it; and also because, as shown by the history of this section, it did not originate in the Homicide Act at all, but was merely originally, and still is in the Code merely, a general act on the subject of parties to actions, and must necessarily apply to all actions for wrongful death. If this construction be given to this act, then it would necessarily follow that, when the parent sues under section 2485, the damages recoverable are punitive, and not compensatory (which has never been — 545 — held), as the parent is given the same right of action as the administrator. In the opinion of this writer the mistake was in the first decision under the Homicide Act, for it is evident that the only meaning of the expression, that such damages should be recovered “as the jury may assess,” was that the former statute, which limited the recovery to $3,000, was repealed, and the jury should assess to any amount recoverable under the general principles of the law. As said by McClellan, J., in the case of Richmond & Danville Railroad Company v. Freeman, 97 Ala. 296, 11 South. 802, “a too farreaching influence was accorded to the- title of the act.” The fact that a wrong conclusion was arrived at under the Homicide Act does not justify this court in wrongly deciding as to the effect of this statute, after the court had so long acquiesced in the proper construction. But accepting the recent decision as the conclusion of this court, it does not change the conclusion that the plain purpose of the proviso is that only one action of any kind shall be brought on account of the same death. To hold that a man may recover in an action as a father, and immediately clothe himself with the attributes of an administrator and recover again, would be to pervert the beneficent principles of the law into a system of wrong and oppression. If .the parents had chosen to waive their right in the first instance and allow the administrator to sue, and he had sued, recovered judgment, and collected it, it would scarcely be contended that he could take out letters again, or, on the same letters, bring another suit and recover. Neither can the same person, by simply changing his designation from father to administrator, recover again. Having had the option at first to sue in — 546 — either capacity, and having selected one, he cannot now avail himself of the other. An inspection of the record show's that in each action (the former suit and this one) some of the counts in the complaint are on the common-law liability and some on the Employer’s Liability Statute. The only assignment of error in this case is to the overruling of plaintiff’s demurrers to defendant’s plea “1-A.” The plea Avas certainly good as to some of the counts of the complaint. Under such an assignment, “the decree wall be referred to the cause of demurrer which Avill support it, and not to those which would render it erroneous, working a reversal.” Therefore the .assignment cannot be sustained. — Western Railway of Alabama v. Arnett, 137 Ala. 414, 425, 34 South. 997; McDonald, et al. v. Pearson, 114 Ala. 630, 641, 21 South. 534; Aetna Insurance Co. v. Lasseter, 153 Ala. 630, 631, 45 South. 166, 5 L. R. A. (N. S.) 252; Richard, et al. v. Steiner Bros., 152 Ala. 303-305, 44 South. 562. The judgment of the court is affirmed. Affirmed. All the Justices concur, except Dowdell, C. J., and McClellan, J., who express their-views.