The contention of the appellee that the foregoing opinion precludes a defendant sued under the homicide act from pleading self-defense, contributory negligence and assumption of risk is so clearly without merit it would seem that no answer to it is necessary.
The authorities are uniform in holding that such defenses are permissible, and that this was the purpose and scope of the qualifying provision in the statute "if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death." Code 1940, Tit. 7, § 123. Stated in the language of the authorities, that qualifying provision "was intended to declare the character of act or omission which would support the action;not the person by whom it could be maintained." South N. A. R. Co. v. Sullivan, 59 Ala. 272, 281. [Italics supplied.]
The only point decided in this case is that the common law disability of the intestate, springing from his conviction and sentence for life, does not preclude the plaintiff as administrator of his estate from maintaining the action.
That question, in principle was settled in the Sullivan case, decided at the December Term, 1877, ten years before married women were given the right to sue for their personal injury.
It is familiar law that the common law disability of a married woman to sue alone for her personal injury continued until the enactment of the "Married Woman's Law" of February 28, 1887, which provided:
"The wife must sue alone, at law or in equity, upon all contracts made by or with her, or for the recovery of her separate property, or for injuries to such property, *Page 646 or for its rents, income, or profits, or for all injuries toher person or reputation; and upon all contracts made by her, or engagements into which she enters, and for all torts committed by her, she must be sued as if she were sole." Code 1886, § 2347. [Italics supplied.]
In Sullivan's case, 59 Ala. 272, 281, to quote from the court's opinion: "It is here contended that the wife, if living, could not have maintained an action in her own name, without joining her husband as co-plaintiff, and that her personal representative can not sue. We do not think this is either the object or sense of the clause referred to. The language, 'if the former could have maintained an action against the latter for the same act or omission, had it failed to produce death,' was intended to declare the character of act or omission which would support the action; not the person by whom it could be maintained. That had already been provided for in the declaration that the personal representative should sue."
In another part of the opinion it was observed: "Hence, if we hold that the personal representative of a married woman can not maintain an action under this statute, we deny all redress for the killing of married women by the wrongful act or omission of another."
And again: "The language of the statute is, 'when the death of a person is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action.' This statute contains no qualifying clauses, limiting its remedial provisions to any class or classes of persons, or excluding any class from its wholesome terms. It employs the word person in its broadest sense, and it would seem that every being falling within that general designation may take shelter under its protecting wings."
THOMAS, BOULDIN, FOSTER, and LIVINGSTON, JJ., concur in the foregoing opinion of BROWN, J.
KNIGHT, J., not sitting.