Summary
In Hain v. Gaddy et al., 219 Ala. 363, 122 So. 329, a case in which it was alleged that the plaintiff's testate was wrongfully killed by Gaddy, the sheriff of Dallas county, in attempting his arrest, it was ruled that the complaint did not state a cause of action against the surety for the reason that only punitive damages were recoverable under section 5696 of the Code, 1923, the homicide statute.
Summary of this case from Giles v. ParkerOpinion
2 Div. 938.
April 11, 1929. Rehearing Denied May 23, 1929.
Appeal from Circuit Court, Dallas County; Thomas E. Knight, Judge.
Hobbs, Craig Brown, of Selma, for appellant.
Every official bond is obligatory on the principal and sureties thereon for every breach of the condition during the time the officer continues in office or discharges any of the duties thereof, for the use and benefit of every person who is injured by any wrongful act committed under color of his office. Code 1923, § 2612; Union Ind. Co. v. Webster, 218 Ala. 468, 118 So. 794; Union Ind. Co. v. Cunningham, 22 Ala. App. 226, 114 So. 285. A personal representative may maintain an action for wrongful act of any person whereby the death of his testator was caused, if the testator could have maintained an action for such wrongful act if it had not caused his death. Code 1923, § 5696. The provision of sections 2612 and 5696 of the Code are to be read into the bond of every sheriff, and form a part of it to the same extent as if set out therein. Mobile Co. v. Williams, 180 Ala. 639, 61 So. 963; Phillips v. Morrow, 210 Ala. 34, 97 So. 130, is not apt. Demurrer to the entire complaint should not have been sustained. Deason v. Gray, 189 Ala. 672, 66 So. 646.
Arthur M. Pitts, of Selma, and B. F. Smith, of Birmingham, for appellees.
Only punitive damages are recoverable under the Homicide Act. Kennedy v. Davis, 171 Ala. 609, 55 So. 104, Ann. Cas. 1913B, 225; Louisville N. R. Co. v. Perkins, 1 Ala. App. 376, 56 So. 105; Kuykendall v. Edmundson, 205 Ala. 265, 87 So. 882; Ala. Power Co. v. Stogner, 208 Ala. 666, 95 So. 151; Phillips v. Morrow, 210 Ala. 34, 97 So. 131; Nat. Sur. Co. v. Plemmons, 214 Ala. 596, 108 So. 514. Punitive damages are not recoverable against sureties on bonds. Phillips v. Morrow, supra; Johnson v. Williams' Adm'r, 111 Ky. 289, 63 S.W. 759, 54 L.R.A. 220, 98 Am. St. Rep. 416; 17 C. J. 988; 2 Sutherland on Damages (3d Ed.) § 488; McClendon v. Wells, 20 S.C. 514; Spaids v. Barrett, 57 Ill. 289, 11 Am. Rep. 10; Dalby v. Campbell, 26 Ill. App. 502; Cobb v. People, 84 Ill. 511; 35 Cyc. 1913. Demurrer was the proper remedy to test the complaint in this case. Ala. L. S. Co. v. Adams, 218 Ala. 647, 119 So. 853; Jeffreys v. Malone, 105 Ala. 489, 17 So. 21.
This is an action by the personal representative of W. E. Moore, deceased, against the defendant Gaddy and his official bond for the death of Moore at the hand of said Gaddy while sheriff, and is based upon the Homicide Act, now section 5696 of the Code of 1923, and the sole question involved is whether or not the damage thereby provided is recoverable on the sheriff's official bond.
This court has uniformly held that section 5696 is penal in its nature and provides only for punitive as distinguished from compensatory damages, and the trial court in sustaining the demurrer of the bond company to the complaint followed the holding of this court in the case of Phillips v. Morrow, 210 Ala. 34, 97 So. 130, and which is in point in principle, if not identical in fact. True, this case nor the ones there cited deal with the homicide statute, but they do hold that official bonds as defined by the statute are intended to cover compensatory damages only, and not penalties or punitive damages. As the only damages provided by section 5696 are punitive and not compensatory, the same are not covered by the bond in question.
This court also dealt with subdivision 3 of section 1500 of the Code of 1907, section 2612 of the Code of 1923, and held, in line with former decisions, that this provision did not have the effect of making official bonds liable for penalties or punitive damages. This question is not only settled in this state, but the result is supported by the great weight of authorities. 17 C. J. p. 988, § 287. While the Morrow Case, supra, was modified or overruled in part, on the second appeal it was not disturbed on the point here involved.
Counsel for the appellant, with zeal and considerable force, argue against the result of the present holding, insisting that it affords a greater protection to property and the person than to life. Courts can only say what the law is and not what it should be. Counsel, however, should not overlook the fact that under the common law an injury to the property or person was actionable, while no civil action existed for the wrongful death of a human being, and it was not until Lord Campbell's Act of 1846 that this harsh doctrine was changed in England and that it is only by the grace of section 5696 that this action can be maintained in this state.
It is well established by the decisions of this court that when a complaint shows a good cause of action, though it includes therein a claim for nonrecoverable damages, the same is not, for this reason, subject to demurrer, as the defect is available by a motion to strike, an objection to the evidence, or a requested charge. But this rule does not apply to cases like this one, where the complaint fails to show a right to recover anything as against the bond company, in fact, does not state a cause of action as to it, and the question was properly tested by a demurrer.
The judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.