Opinion
1920032.
August 27, 1993. As Modified on Denial of Rehearing February 25, 1994.
Appeal from the Jefferson Circuit Court, No. CV-85-5215, Josh Mullins, J.
Stephen D. Heninger of Heninger, Burge Vargo, Birmingham, for appellant.
W. Michael Atchison, Robert P. MacKenzie III and Sybil Vogtle Abbot of Starnes Atchison, Birmingham, for appellee.
The plaintiff, Michael Lane Rose, appeals from a summary judgment in favor of the defendant, Dr. Earl M. Rogers, M.D.
Originally, this wrongful death case was tried before a jury on a claim of medical malpractice against Dr. Rogers and Decatur General Hospital. The jury awarded Rose $500.00 against Decatur General, but found in favor of Dr. Rogers. Rose sought a new trial, but it was denied by the trial court. Rose appealed to the Court of Civil Appeals. In that appeal, Rose v. Decatur General Hosp., 571 So.2d 997 (Ala.Civ.App. 1990), the court held that the trial court had erred as to a jury instruction, and ordered a new trial as to Dr. Rogers, but affirmed the $500.00 verdict as to Decatur General.
On remand, Dr. Rogers moved for a summary judgment, arguing that there can be no apportionment among joint tort-feasors and pointing out that there had been a $500.00 judgment in this case based on the incident in issue, and that that judgment had been affirmed by the Court of Civil Appeals. The trial court agreed with Dr. Rogers that Rose, therefore, could obtain no additional judgment. On his motion, it entered a judgment for Dr. Rogers.
In Black Belt Wood Co. v. Sessions, 514 So.2d 1249 (Ala. 1986), this Court reaffirmed a long-standing interpretation of the wrongful death statute, Ala. Code 1975, § 6-5-410, as providing for no apportionment of damages among joint tort-feasors for an indivisible injury. Rose concedes that this rule of law applies here, but he ably argues for a change in the law.
In Black Belt, we emphasized that although this Court has the authority to abrogate its interpretation of the wrongful death statute, it has stated that "as a matter of public policy" any such change should come from the legislature. 514 So.2d at 1263. In the interest of brevity, we do not restate all of the considerations that went into that decision, but we reaffirm our interpretation of the wrongful death statute. In both Black Belt and the more recent case of Tatum v. Schering Corp., 523 So.2d 1042 (Ala. 1988), we discussed at some length the issue of the wrongful death statute and apportionment among joint tort-feasors. We direct readers to those cases for a full discussion of the historical underpinnings of the wrongful death statute, and the Court's position as to a change in its interpretation.
Given the foregoing, we agree with the trial court that there could be no apportionment of damages in this case, and we affirm its judgment in favor of Dr. Rogers.
We emphasize that this holding relates solely to whether a plaintiff who has sued alleged tort-feasors in a single action, averring that the wrongful actions of the defendants "combined and concurred" to proximately cause a wrongful death, can seek apportionment of damages among the alleged tort-feasors.
AFFIRMED.
MADDOX, ALMON, SHORES and INGRAM, JJ., concur.
HOUSTON, J., concurs specially.
How long? Oh, how long, Alabama, will you remain in the Jurassic period of jurisprudence? Only punitive damages for wrongful death! A result of judicial error. When there are joint tort-feasors you must punish and deter each only for the wrong that each commits; however, punitive damages cannot be apportioned based upon each tort-feasor's wrong! A result of juridical error. A defendant reaps the benefit of these judicial errors this time; frequently, a plaintiff reaps the benefit of these errors. Therefore, the benefits and the disadvantages of these errors fall indiscriminately on all parties. The Alabama Supreme Court is an error-correcting Court. Like charity, error correcting should begin at home.
I have long since given up dissenting in these cases. However, every now and again, I must be a gadfly and warn against the fallacy of judicial inerrancy. Because the law is what it is, I concur.
If this special concurrence is nebulous, see my 17-page dissent in a case relied on heavily in the majority opinion, Tatum v. Schering Corp., 523 So.2d 1042, 1047-63 (Ala. 1988) (Houston, J., dissenting).