Reduced to its essence the inquiry is this:
Is a convict under sentence of imprisonment for life entitled to the protection of the Alabama Statute to prevent Homicide? Tit. 7, § 123, Code of 1940.
The action is punitive, to prevent the taking of human life by wrongful act; prevent it by a law warning the careless that he is subject to be mulcted by such sum in punishment of his wrong as the jury shall assess.
The award is in no sense compensatory, either for pecuniary loss or pain and suffering of the decedent, nor for loss suffered by his dependents or next of kin. Evidence of compensatory damages is not even admissible. It is no part of the estate of decedent in the sense of an estate acquired during his life, either in property or as damages for personal injuries. The personal representative is a law appointed agent to bring an action to enforce the statute against the wrongdoer. In providing for a disposition of the sum assessed to prevent homicides the lawmakers selected the next of kin, who, under existing law, are distributees of the estate left by decedent. The beneficiary or beneficiaries become the direct owners of the cause of action. They may agree upon, collect and give releases for the demand before an administrator is appointed. Surely there is no need to further review our line of cases to support all these propositions. They are found in the annotations to the above cited section of our new Code.
If the purpose of the statute be what its original title said it was, and what this court has said it is, then the simple question is, what has the status of civil death to do with it?
Civil death means the loss of civil rights, including the right to sue in the courts. Civil rights are all those which arise from positive law. There are natural rights; rights which exist even if there were no government; no civil rights defined by law. They are inalienable rights with which every man is endowed by the creator. To conserve them is the end and object of government. Among these are life and liberty. They may be forfeited by the act of their possessor alone. These are not meaningless platitudes. They are fundamental concepts; they are of the genius of our institutions. See Section 1, Alabama Bill of Rights; 14 C.J.S., Civil Rights, p. 1160, § 2; 10 Am.Jur. 894.
A life convict has forfeited his natural right to liberty, not the natural right to live. He may be pardoned, and his civil rights restored. Vann v. Rogers, 225 Ala. 186,142 So. 539. *Page 647
If he has the natural right to life, by what process of reasoning should the law to prevent homicides not shield him from death by wrongful act as any other human being?
To murder him is a crime the same as the murder of another man. 18 C.J.S., Convicts, p. 102, § 2.
Indeed, it seems the penal laws, enforceable by the state, protect him against assault and battery or mayhem as any other. I find no authority to the contrary, and to my thinking, any other view would be a reproach to civilization.
The life convict can be convicted of crime as any other man.
By the Homicide Act the state has made an additional safeguard to human life. Not a penal statute enforceable by prosecution in the name of the state; but a punitive statute enforceable by civil action brought by a state appointed agent to recover such sum as may be a just imposition upon the wrongdoer, determinable by the culpability of the wrongful act causing the death of a human being. A life convict is still a human being entitled to all the protection of the natural right to live as other men, unless the statute which creates this cause of action excludes him from its protection. The clause "if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death" is the sole provision on which can be rested any exclusion of a life convict from the protection of the statute.
For my part, I can see no point in quoting and relying on the numerous cases construing this clause wherein the court was dealing with defenses going to the merits of the case. The reference to Lord Campbell's Act in these cases was to emphasize that all defenses arising from the circumstances which would defeat an action for personal injury on the merits of the case are available in this action. This thought of the court was not directed to the question here presented. Lord Campbell's Act was strictly compensatory. In this its aim and purpose was different from ours. This difference presents the real question before us. 25 C.J.S., Death, p. 1076, § 15.
To make our cases now do service as contended is to put them in conflict with the other line of cases, beginning with South North Alabama Railroad Company v. Sullivan, Adm'r, 59 Ala. 272, definitely holding this clause has no reference to civil disability of the injured party, cutting him or her off from any right of action for personal injuries. That case proceeds on the hypothesis, that if the common law still prevailed, touching actions for personal injuries to a married woman, she had no cause of action; the cause of action was in the husband. The recovery belonged to him. The wife merely joined in the action to recover a chose in action belonging to the husband. Note the following in the opinion of Justice Stone:
"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."
The original act, there considered, used the word "person" instead of "intestate" as in the present statute.
But it is said "There must be a cause of action." What is the cause of action? Time after time our cases have followed the plain words of the statute. The cause of action is the wrongful act causing the death of a person. The case of Ex parte Adams,216 Ala. 241, 113 So. 235, 236, dealt solely with the question whether two suits could be maintained, one for personal injury, which pending suit resulted in death, and a second suit under the Homicide Act.
Said the court: "We think that the cause of action * * * is identical — that is, the same wrong." [Italics supplied.]
Speaking of the Homicide Act, it was further said:
"The statute only applies when deceased could have maintained action had he survived, but the nature of the wrongful act or omission is the basis of the action. South North R. R. v. Sullivan, 59 Ala. 272."
Here the court definitely approved the doctrine of South North A. R. R. Co. v. Sullivan, supra, evidently intending to make clear that what was written in the Adams case was not to be read as in conflict with the Sullivan case.
As applied to two actions, one a revivor of the action for personal injuries, another an action under the Homicide Act, both arising from the same wrongful act, the case of Ex parte Adams was followed and approved in Bruce v. Collier, 221 Ala. 22,127 So. 553, where further reasons against *Page 648 the maintenance of two actions for the same wrongful act are discussed.
When properly read, I think there is no occasion for criticism of Ex parte Adams, supra. My view is we need merely adhere to the basic idea that our statute under which this suit is brought is to prevent homicides, safeguard the natural right to life.
The disability to sue for personal injury resulting from civil death was never intended to deprive one of the protection of the laws for this purpose. This, I think, the correct view if our cases defining the clause in question had never been written.
But, it so happens, there has been occasion to so declare in a line of cases never overruled, and now written into legal publications as the law of Alabama and many other states. 25 C.J.S., Death, p. 1092, § 24.
Civil death, with its incidents at common law, has, in the absence of statutes, been generally repudiated in this country as repugnant to our institutions. Our statute, because of its special provision for making a will within six months after sentence for life, has been construed to contemplate a winding up of his estate thereafter as in case of natural death. Holmes v. King, 216 Ala. 412, 113 So. 274.
If such convict be pardoned and his civil rights restored, he may accumulate another estate to be administered after his natural death. So, there seems no point in the idea that two administrators may not be appointed, one to wind his estate when sentenced, the other to enforce the new cause of action arising from his death by wrongful act.
The civil death statute should be limited to its manifest purpose, and not so extended as to deprive him of the benefits of another statute expressly enacted to protect the natural right to life.
Owens v. Auto Mut. Indemnity Co. et al., 235 Ala. 9,177 So. 133, was an action under § 5695, Code of 1923, an action for punitive damages for the death of a minor child by wrongful act. The father, himself the tort-feasor, is, under the statute, one of the beneficiaries of the recovery.
An action for punitive damages against the indemnitor of the tort-feasor, for his benefit, would convert the statute to prevent homicides into one to encourage homicides. See Anno.Tit. 7, § 119, Code of 1940; Ex parte Corder, 222 Ala. 694,134 So. 130; McWhorter Transfer Co. et al. v. Peek,232 Ala. 143, 167 So. 291.
The result in the Owens case was correct. It seems to have been presented to this court on lines covered by the decision. The Sullivan case and others to like effect were not cited. So far as appears the principle they assert was not raised.
Late cases shedding distinct light on the case are: Oliveria v. Oliveria, 305 Mass. 297, 25 N.E.2d 766, 768, 769, and Kaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663,104 A.L.R. 1267.