Opinion
4 Div. 424.
February 3, 1972.
Appeal from the Circuit Court, Covington County, F. M. Smith, J.
Tipler, Fuller, Melton Barnes, Andalusia, for appellant.
Where the legislature has attempted to change the common law and has inadequately provided change leaving an inequitable chasm, the court should complete the change based on reason and justice. All actions and causes of action on contract, express or implied, survive in favor of the personal representative of a deceased. Code of Alabama, as amended, Title 7, Section 150. The personal representative of a deceased has a right to file suit for property damage suffered by the deceased as the result of the negligent act of a third party, where death results. Code of Alabama, as amended, Title 7, Section 123(1); Standard Accident Ins. Co. v. Whitset, 270 Ala. 334, 118 So.2d 922. A chose in action is a personal right recoverable by a suit at law and the administrator has full legal title to choses in action of the deceased and is under a duty to collect and reduce them to possession. Arledge v. Ellison, 247 Ala. 190, 23 So.2d 389. The term chose in action includes a right of action for personal injury. Vol. 7, Words and Phrases, Chose in Action, p. 178 Perm. Ed.; Bennett v. Bennett, 23 N.E. 17, 21.
Albrittons Rankin, Andalusia, for appellees.
Under the common law rule, followed in this State, no action could be maintained by an administrator to recover damages for an injury done either to the person or the property of his intestate — the action died with the person. McDowell v. Henderson Mining Co., 276 Ala. 202, 160 So.2d 486; Whether our statutes should or should not provide for the survival of causes as well as of actions, is one conclusively for the legislature and not for the court. Wynn v. Tallapoosa County Bank, 168 Ala. 469 (51), 494-495, 53 So. 228; McDowell v. Henderson Mining Co., 276 Ala. 202, 160 So.2d 486. While our statutory law provides for survival of personal "actions" in favor of personal representatives it does not provide for survival of personal "causes of action" in favor of personal representatives. Code of Alabama 1940, Title 7, Section 150, as amended; McDowell v. Henderson Mining Co., 276 Ala. 202, 160 So.2d 486. Even an "action" begun before death for injuries to the person does not survive to the personal representative if death results from the injuries. Bruce v. Collier, 221 Ala. 22, 127 So. 553; Parker v. Fies Sons, 243 Ala. 348, 10 So.2d 13. Where death results from a wrongful act, the administrator of the decedent's estate may recover from the wrongdoer only by action under the Homicide Act. Supra. In an action under the Homicide Act, damages are punitive as distinguished from actual or compensatory. Code of Alabama, 1940, Title 7, Section 123 (as amended); Hardin v. Sellers, 270 Ala. 156, 117 So.2d 383.
This appeal is from a judgment of nonsuit resulting from the sustaining of a demurrer to plaintiff's complaint as last amended.
The amended complaint alleged that plaintiff, Mattie Carroll, as administratrix of the estate of Lillie Carroll, deceased, claimed of the defendants, Florala Memorial Hospital, Inc., Dr. J. Paul O'Neal and others, damages for hospital, doctor's bills and drugs for treatment of injuries to her intestate caused by the combined and concurrent negligence of defendants from the time of said intestate's injury until such time as her intestate died. The amended complaint also included the allegation that the defendants "negligently permitted said plaintiff's intestate to fall from the bed where she lay which so injured her that she died."
Obviously, this allegation, when read with the other parts of the amended complaint claimed compensatory damages for an alleged wrongful act causing death. But appellant states in brief:
"This is not a wrongful death action. Appellant's suit is for medical expense incurred after a negligent injury and prior to death. Appellant is aware that Alabama's wrongful death statute allows for punitive damages not compensatory. The wrongful death statute is not applicable here as the damages claimed by Appellant's intestate were incurred prior to death. Appellant says that the period following negligent injury until death is without the purview of the wrongful death statute as well as damages sustained within that period."
After discussing some of our cases and the failure of the Legislature to allow a suit like the instant one when it amended Tit. 7, § 150 in 1951, appellant further suggests in brief:
"Appellant therefore asks this Court to reconsider its previous decisions concerning the common law principles relating to survivability of causes of actions and declare that it is hereby changed to allow personal representatives to maintain suits to enforce tort claims to correspond with a personal representative's statutory ability with respect to contract causes of action."
Finally, appellant states in her reply brief: "Appellant does ask this Court to allow that she maintain two actions . . . one for medical expenses and one for wrongful death."
The answer to these statements is that neither our statutes nor case law provide for such a suit as appellant is attempting to pursue. In Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228, this court said:
"* * * We have in Alabama, as we have seen, statutes as to the survival of actions, but none as to the survival of causes of action, unless the homicide statute and the employer's liability act are such statutes. * * *"
We also said that "it is certain that the word 'action,' as used in the statutes, does not mean or include the phrase 'cause of action,' because both the word and the phrase are used in the statutes, and unmistakably used to refer to different things, and are in no case used as synonyms."
The Wynn case probably caused the Legislature to amend Tit. 7, § 150 in 1951 by adding that personal causes of action survived against the personal representative of a deceased tort-feasor, but a reading of the statute as amended clearly shows that the Legislature did not add a provision that personal causes of action survive in favor of personal representatives. The effect of the amendment was considered in McDowell v. Henderson Mining Co., 276 Ala. 202, 160 So.2d 486, and this court again held that personal cause of action did not survive in favor of personal representatives. And we further held that if a remedy was necessary it was a matter for the Legislature and not this court.
We have also consistently held that even an action begun before death for injuries to a person does not survive to the personal representative if death results from the injuries. Bruce v. Collier, 221 Ala. 22, 127 So. 553, and Parker v. Fies Sons, 243 Ala. 348, 10 So.2d 13. As already noted, one of the allegations in the instant case alleged that death resulted from the injuries.
We consider all the authorities cited supra as holding against the contention of appellant, and we are not convinced that we should accede to appellant's request to overrule all these cases and permit a cause of action not sanctioned by the common law, our statutes or our case law.
Affirmed.
HEFLIN, C. J., and LAWSON, HARWOOD and MADDOX, JJ., concur.