What is now section 119, Title 7, Code of 1940, has been carefully considered in some of our older cases, especially that of White v. Ward, 157 Ala. 345, 47 So. 166, 18 L.R.A., N.S., 568, approving a construction collaterally involved in Tennessee C. I. R. Co. v. Herndon, 100 Ala. 451,457, 14 So. 287, in holding that it confers on the parents of a minor child the exclusive right to the benefits of a recovery, although the suit may be by an administrator of the child's estate with a later qualification that the parents had not ceased to discharge their parental duties with reciprocal right to the child's services. McWhorter Transfer Co. v. Peek,232 Ala. 143, 146, 167 So. 291. *Page 676
In White v. Ward, supra [157 Ala. 345, 47 So. 167] (followed in Ex parte Corder, 222 Ala. 694, 134 So. 130, and Benson v. Robinson, 223 Ala. 85, 134 So. 799), in which the question was directly involved as to whether the parents were entitled to the recovery, the court interpreted what is now section 119, supra, as it then appeared without material change in respect to the question now involved, by observing: "The statute * * * conferring also the right upon the administrator to sue, being a new one, is not found in any administrative right at common law based upon the title of the deceased. As against the parents, therefore, the administrator could have no right or title to the chose in action. He could not be said, as against them, to have the legal title, and certainly he had not the equitable title. The right of property was clearly in the parents, and all necessary right to assert the same was also in them. It is entirely clear, therefore, that the parents would have a right to deal with the chose in action, at their pleasure, before, after, or pending the assertion of the right by the administrator * * *. Any release of the claim by the parents, pending a suit by the administrator for recovery, could be well pleaded puis darrein continuance."
I am thoroughly in accord with the opinion of Justice Livingston in the instant case, in observing that section 504, Title 37, Code of 1940, should not be so construed as to deprive the parents of their claim under section 119, supra, by the administrator as the personal representative not filing it as there required. The law cannot mean that the rights of the parents under that section are made to depend upon the appointment of an administrator and upon him filing the claim under section 504, supra, within six months. See, Howell v. Dothan, 234 Ala. 158, 174 So. 624. But I also think that in all cases of personal injury or death claimed to be chargeable to a city, the claim must be filed under section 504, supra, and claims for damages growing out of all other torts must be presented under section 476, Title 37, Code of 1940. A compliance with the former (section 504) is a condition to recovery and it must be alleged in the complaint: the latter (section 476) is a limitation, or as a statute of non-claim, and need not be alleged in the complaint, but a failure of compliance must be specially pleaded. Howell v. Dothan, supra. See, also, Downs v. City of Birmingham, 240 Ala. 177(24), 185,198 So. 231.
I do not think that because section 504, supra, provides that in case of death the claim shall be filed by the personal representative it has the effect or was intended to mean that when the claim is for the wrongful death of a minor, section 504 does not apply merely because of the use of the term "personal representative" as the one to file it.
In the case of McDougall v. City of Birmingham, 219 Ala. 686,123 So. 83, 63 A.L.R. 1076, in construing what is now section 659, Title 62, Code of 1940, which requires a claim for personal injuries to be sworn to and filed by the party injured with the city clerk, we held that a suit by a minor could be maintained, though the claim was filed, not by him as the party injured, but by his parent. And in Crumly v. City of Birmingham, 244 Ala. 634, 15 So.2d 273, this court held that joint owners could sue the city when the claim was filed by only one of them. Those statutory provisions have been construed in such manner as to effectuate their purpose.
Under the terms of section 504, supra, the claim for death is to be filed by the personal representative of decedent. But under our cases, he is but a trustee for the parents when the decedent was a minor with parents occupying the place of parents. They are the owners of the claim in their own exclusive right. They may settle the claim and give an acquittance, though the administrator has sued. I do not think it would be a strained construction of section 504 to hold that such parents may file the statement there required, since it would be for them as beneficiaries if filed in the name of the personal representative. The policy of our courts and statutes is to recognize the beneficial owner of a claim as the one entitled to the remedies provided for its enforcement, though otherwise expressed. Compare sections 126 and 127, Title 7, Code of 1940.
I prefer to base my concurrence on the theory that the complaint which alleges that plaintiff as the parent of the deceased minor suing under section 119, supra, filed a sworn statement of the claim within six months, is sufficient to comply with section 504, supra. But that section 504 applies by its express terms, and constitutes an exception to the torts mentioned in section 476, supra, so far as there is a difference *Page 677 in legal effect between them, whether the injury or death was that of a minor or of an adult.
I therefore concur in the conclusion only.