In Alabama, citizens enjoy a fundamental right not to be deprived of liberty and life as a consequence of fatal malpractice. Cf. Breed v. Atlanta, B. C.R.R., 241 Ala. 640, 642, 4 So.2d 315, 316 (1941) (purpose of wrongful death actions is to "stimulate diligence in the protection of [a person's] natural right to live, without respect to the personal condition or disability of the person so protected"). Personal representatives of victims of fatal malfeasance, acting as agents of the citizen body, seek to vindicate the abridgment of that interest.
Our Court has held that the Wrongful Death Statute creates a new cause of action, not a derivative one or one based upon the right of succession to the decedent. Breed v. Atlanta, B C R.R., 241 Ala. 640, 4 So.2d 315 (1941). "Defendant[s] argue David Turcotte [or Kyra L. Woodman] acted as agent and also Plaintiff is a third party beneficiary and therefore this action is covered by said clause.
Our Court has held that the Wrongful Death Statute creates a new cause of action, not a derivative one or one based upon the right of succession to the decedent. Breed v. Atlanta, B C R.R., 241 Ala. 640, 4 So.2d 315 (1941). "Defendant[s] argue David Turcotte [or Kyra L. Woodman] acted as agent and also Plaintiff is a third party beneficiary and therefore this action is covered by said clause.
The only persons liable thereunder, and against whom a cause of action is created by the statute are "any person or persons, or corporation, his or their servants or agents" who commit a wrongful or negligent act causing death. Code 1940, Tit. 7, § 123; Kennedy v. Davis, 171 Ala. 609, 55 So. 104; Parker v. Fies Sons, 243 Ala. 348, 10 So.2d 13; Breed v. Atlanta, B. C. R. Co., 241 Ala. 640, 4 So.2d 315. The cause of action created by the Homicide Act is solely against the person causing the wrongful death and the damages recoverable under said act are strictly punitive and are to punish the person (not his estate) who causes the death. Bell v. Riley Bus Lines, 257 Ala. 120, 57 So.2d 612; Richmond Danville R. R. Co. v. Freeman, 97 Ala. 289, 11 So. 800. There is a clear distinction between actions and causes of action.
Martin's Heirs v. Martin, 22 Ala. 86; Hines v. Hines, 203 Ala. 633, 84 So. 712; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Walker v. Walker, 218 Ala. 16, 117 So. 472; Johnson v. Johnson, 245 Ala. 145, 16 So.2d 401; Sloss-S. S. I. Co. v. Watford, 245 Ala. 425, 17 So.2d 166; McLaughlin v. McLaughlin, 201 Ala. 482, 78 So. 388. A conviction and sentence to the penitentiary for life constitutes civil death; that state of a person who, although possessing natural life, has lost all his civil rights. Code 1940, Tit. 61, § 3; Holmes v. King, 216 Ala. 412, 113 So. 274; Breed v. A. C. L. R. Co., 241 Ala. 640, 4 So.2d 315. A man or woman can have but one living husband or wife, and so long as he or she lives, and the marriage remains in force, a subsequent marriage, whether meretricious or founded in mistake, and at the time supposed to be valid, is null and void. Bell v. Tenn. C. I. R. Co., 240 Ala. 422, 199 So. 813; Johnson v. Johnson, supra; Sloss-S. S. I. Co. v. Watford, supra. Where a party intentionally conceals the fact he or she has previously been married and does have a living husband or wife, from whom he or she has not been divorced, and by means of such fraud induces another to enter into marriage with him or her, such a fraud is sufficient to give a court jurisdiction to annul the subsequent marriage. 9 R.C.L. 300, § 70; Batty v. Greene, 206 Mass. 561, 92 N.E. 715, 138 Am.St.Rep. 407; Buckley v. Buckley, 50 Wn. 213, 96 P. 1079, 126 Am.St.Rep. 900; Williams v. Williams, 63 Wis. 58, 23 N.W. 110, 53 Am.Rep. 253; Barth's Adm'r v. Barth, 102 Ky. 56, 42 S.W. 1116, 80 Am.St.Rep. 325; Moffitt v
The underlying purpose of Alabama's Wrongful Death Act is " to protect human life; to prevent homicides by wrongful act, omission or negligence of persons and corporations, their agents and servants; and to stimulate diligence in the protection of the natural right to live, without respect to the personal condition or disability of the person so protected." Breed v. Atlanta B. C.R. Co., 241 Ala. 640, 642, 4 So.2d 315, 316 (1941) (emphasis added). The right to maintain an action for wrongful death, for adults or minors, did not exist at common law; consequently, at common law, it was cheaper to kill a person than to injure him.
Code 1876, § 2641. This Court, in Breed v. Atlanta, B. C. R.R., 241 Ala. 640, 642, 4 So.2d 315, 316 (1941), had an opportunity to address one of the underlying purposes of the Wrongful Death Act, the prevention of homicides. Breed involved a convict who, while serving a life sentence in prison, was killed by a passing train, and in that case this Court had occasion to construe, once again, that provision of the Wrongful Death Act stating that the decedent must have been able to commence an action but for his death.
We believe that Alabama law is clear to the conclusion that self-defense can be pleaded in an action for wrongful death. In Breed v. Atlanta, B. C.R. Co., 241 Ala. 640, 4 So.2d 315 (1941), the plaintiff filed suit under three counts, the first two alleging negligence and the third alleging "wanton, willful, or intentional conduct." The Court held, on rehearing, that any contention that a defendant is precluded under the homicide act from pleading self-defense is clearly without merit.
In a statutory death action plaintiff is a mere legislative agent for the deceased and stands totally in the deceased's shoes. Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912; Breed v. Atlanta, etc., R. Co., 241 Ala. 640, 4 So.2d 315; Bell v. Riley Bus Lines, 257 Ala. 120, 57 So.2d 612; Title 7, § 123, Code of Alabama. HARWOOD, Justice.
Campbell v. Hughes, 155 Ala. 591, 47 So. 45; Jefferson v. Beall, 117 Ala. 436, 23 So. 44. Alabama's statutes which permit a foreign administrator to sue in Alabama limit such right to the recovery of property. Code 1940, Tit. 61, § 15. The right of action for "wrongful death" in Alabama is not property. Bell v. Riley Bus Lines, 257 Ala. 120, 57 So.2d 612; Breed v. Atlanta, B. C. Ry. Co., 241 Ala. 640, 4 So. 315. In order for a suit to be brought in a representative capacity the plaintiff must use the word "as" or words of similar meaning which should follow the plaintiff's name and precede the word that is descriptive of the capacity in which the suit is brought.