The opinion
On Rehearing.
Application overruled.
ANDERSON, C. J., and McCLELLAN, THOMAS, and MILLER, JJ., concur.
SAYRE, SOMERVILLE, and GARDNER, JJ., dissent.
On Application for Rehearing.
MILLER, J.
Tire original opinion, approved by a majority of this court at its first reading, on application of plaintiff for rehearing brought forth a dissenting opinion by the minority of the court. •
[2]
It is now on its second rehearing by application of a member of this court. This is permissible and proper. On this second rehearing the original majority opinion becomes the dissenting minority opinion, and the minority dissenting opinion becomes the opinion of the court by a majority. Justices SAYRE, SOMERVILLE,' GARDNER, and 'THOMAS dissent from the original opinion in its entirety, and hold that there is no reversible error in the rulings of the trial court as expressed therein. The former order reversing the case is therefore set aside by them.
In the présent majority and former minority opinion, Justice SAYRE, speaking for the court, says:
“Indeed, this court held in Garrett v. Harrison, 201 Ala. 186 , 77 South. 712 , that, where a party invoked the court to compel a fraudulent administrator to pay into court a fund the
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product of fraud and collusion, lie thereby ratified the settlement in which the fraud and collusion was practiced.”
We do not think the opinion of the court will support the above interpretation. The facts and opinion appear different to us. That case is not on a parallel with this case. It does not support it. In that case the administrator settled a death claim; and the distributee filed petition to have him removed. This court in its opinion in that case wrote:
“The allegation, otherwise in appellant’s petition, that Harrison effected the settlement before his appointment as administrator, and that the settlement was the product of collusion or fraud, cannot avail this petitioner; since the petition of the appellant as well as the sworn claim filed by the appellant both manifest a ratification of that settlement by claiming the amount thereof and by invoking the court to compel Harrison to pay that sum into the court. The record discloses that Harrison executed, with presumably adequate security, an administrator’s bond in the sum of $2,000. There is no reason disclosed to anticipate the failure of the approximately $1,000 to reach the hands of those to whom, under the law, it should go.”
In that case the widow, the distributee, was seeking the money from the' alleged fraudulent settlement of deatlf claim not to be returned to the defendant, but to prevent the administrator from keeping it personally and to appropriate it to her use. This being manifested by her “in the petition” and “in the sworn claim filed,” she thereby, of course, ratified the settlement.
Here in the present case, when the deceased was killed, the widow was residing in Ohio; the deceased was residing in Alabama. The father of the deceased was appointed administrator and settled the claim with the defendant for $500 cash. Within the time allowed for the widow to apply for and obtain letters of administration, the father was removed and the widow was appointed administratrix. There was only one Albert Brown. He was killed. There was only one estate. It was Albert Brown’s estate. There could be only one representative of his estate. His father as such, the first representative, settled the death claim with the defendant for $500. It has never been, returned to defendant. He [the father] was removed from the administration. The widow, the distributee, was appointed the second administratrix. She made no effort to secure the $500 and return it to defendant, but filed suit for damages for the same cause of action, the death of Albert Brown, and the jury gave her as administratrix $500.
“The person who would disaffirm a fraudulent contract must return whatever he has received under it.” B. R., L. & P. Co. v. Jordan, 170 Ala. 530 , 54 South. 280 .
The .estate of Albert Brown received through his father, as administrator, $500 from defendant for the distributee for the death claim. The estate of Albert Brown through his widow, as administratrix, dis-affirms that alleged fraudulent settlement, does not return it, makes no effort to return it, gives no legal excuse for not returning it except she did not receive it, and the estate gets judgment for $5,000 more for distribution to the distributee.
Albert Brown, if living, could not' disaf-, firm an alleged fraudulent contract of settlement for his injuries without first returning whatever he has received'under it; and the estate of Albert Brown should return what it has received through its representative under the contract from the defendant for the distributee before the estate should be permitted to disaffirm the alleged fraudulent contract made with its repuesen-tative and obtain another amount by suit from the defendant for the distributee or aver a legal excuse for not doing so.
ANDERSON, C. J., and McCLELLAN, J., concur in the foregoing opinion. Justices SAYRE, SOMERVILLE, GARDNER, and THOMAS, a majority of the court, express the views of the court in another opinion on that subject.
[3]
In the original opinion, whether the damages assessed by the jury were excessive, as claimed on motion for new trial, was left an open question, as the ease by it was reversed. Now, as it is affirmed by the court, it is necessary for that question to be answered. The rule to fix and measure the compensatory damages in cases of this kind has been frequently declared by this court. It can be found in the following cases: L.
&
N. B. Co. v. Trammell, 93 Ala. 350 , 9 South. 870 , and L. & N. R. Co. v. Orr, 91 Ala. 548 , 8 South. 360 . The damage recoverable is never nominal in an action like this, unless there are no distributees. In the case of Woodstock Iron Wks. v. Kline, 149 Ala. 401 , 43 South. 365 , this court said:
“In this ease it does not appear that there were no distributees of deceased’s estate, to whose benefit the money would inure. It is only in such ease that the recovery is held to he limited to nominal damages. James v. R. & D. R. R. Co., 92 Ala. 231 , 9 South. 335 ; T. C. C. I. Co. v. Enslen, 129 Ala. 348 , 30 South. 600 . Here it was shown that deceased had a father who survived him, and it was not shown, or attempted to be shown, that he left no other distributees. His earning capacity, his age, probable duration of life, habits of industry as were shown, business, etc., furnishes proper data from which a pecuniary compensation might be fixed by the jury. L. & N. R. R. Co. v. Orr. 91 Ala. 548 , 8 South. 360 ; James v. R. & D. R. R. Co., 92 Ala. 231 , 9 South. 335 ; McAdory v. L. & N. R. R. Co., 94 Ala. 272 , 10 South. 507 ; Tutwiler Coal, Coke & Iron Co. v. Enslen, 129 Ala. 348 , 30 South. 600 .”
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[4]
The administratrix, the plaintiff personally, is the only distributee of the deceased. She is his widow. There are no lineal descendants. They were married in 1016. They lived together less than 2 years. Her parents went to Ohio. His parents lived in Alabama. She left him and went to live with her parents in Ohio in November, 1917. He continued to live in Alabama. She remained in Ohio until after his death. She never saw him again after she went to Ohio, He contributed nothing to her support after she went to Ohio. For nearly 2 years before his death he did not give her one cent. His income was $3.50 per day wages at the time of his death. His health was good, his age 26, and he left no estate. The wages were spent on himself. There is< no evidence as to his assisting any one after his wife went to her parents. She never came to see him and he never went to see her after their respective residences were located in different states.- She lived in Ohio, and he lived in Alabama from November, 1917, to July, 1919, the time of his death. Within 30 days after he was killed she returned to Alabama. Before she left for Ohio, his wages were $2.20 per day. Out of it he supported himself, his wife, and their child. They consumed all of it. She testified that they had not separated, that she wrote to him, and that she intended to come back to him.
The jury might infer and believe from this testimony that she might have returned to him or he might have gone to her, and that he might have supported her from his wages, if he had not been killed.
[5]
The jury by their vérdict fixed her compensation as a dependent on her husband, Albert Brown, and her expectation from the •distribution of his estate at $5,000. This, under all the evidence in this case and the rule fixed for its determination, is excessive. Proceeding, in the absence of other reversi-" ble error, to assess the just and proper amount of recovery in this cause, as required by the act of September 17, 1915 (Acts, p. 610), the court fixes upon the sum of $2,500, and doth order that the judgment in this cause be reversed and remanded unless plaintiff within 20 days from the date hereof remit all damages in excess of said amount, in which event the judgment will be affirmed.
Application granted, original judgment of reversal set aside, and judgment reversed •conditionally.
ANDERSON, O. J., and SAYRE and GARDNER, JJ., concur in the foregoing opinion on damages.
McCDEBDAN, SOMERVILLE, and THOMAS, JJ., dissent.