The opinion
BROWN, J.
(dissenting). This action is brought under section 2486 of the Code of 1907, which provides that—
“A personal representative may maintain an action, and recover such damages as the jury may assess, for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused.”
It has been repeatedly held that the damages recoverable under this statute are in no sense compensatory, but are purely punitive, and the right of action is given and the damages awarded to accomplish the purpose of the statute “to prevent homicides.” The right of action is conferred by statute on personal representatives, and hence, if such personal representative is entitled to maintain the action at all, he is entitled to recover as of right such punitive damages “as the jury may assess.” That it was the legislative purpose to give the jury, in such cases, “an unbridled discretion” in assessing damages, is manifest by the wording of the statute, as well as the state of the law immediately preceding its enactment. By Code of 1852, § 1939 (Code 1867, § 2298), damages in such cases were limited to “three years’ income of the deceased, and in no case to exceed $3,000.” This limitation as to the amount of damages recoverable, no doubt, in the judgment of the Legislature, so hampered the statute as to render it ineffectual in the prevention of homicides by wrongful act or negligence, and hence the act of 1872. Acts 1871-72, p. 83. This statute was brought forward in the Code of 1876 as section 2641 without change, and authorized the recovery of such “sum as the jury deemed just,” and the only change in the language of the statute in succeeding Codes was to make it read “.such damages as
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the jury may assess.” Code 1886, § 2589; Code 1896, § 27; Code 1907, § 2486.
The damages being purely punitive and recoverable as of right under the statute, the reasoning in Coleman v. Pepper, 159 Ala. 310 , 49 South. 310 (an action for damages for trespass on land), followed and applied in Cox v. B. R., L. & P. Co., 163 Ala. 170 , 50 South. 975 , is not applicable to actions under the statute, and was, in the opinion of the writer, improperly and erroneously applied in the Cox Case. To authorize this court to interfere with the verdict of a jury in such cases, it must appear that the amount of the recovery was superinduced either by some erroneous ruling of the trial court, or by passion or prejudice on the part of .the jury against the appellant. This appearing on the record, it is not within the province of this court to say what damages an unbiased jury would have awarded; and the only logical result is to award the appellant a new trial and let the case be submitted to an unbiased jury. But where, as here, the court holds that the verdict was not influenced by passion or prejudice or error of the trial court in instructing the jury, or otherwise, this court, in the opinion of the writer, has no more authority to reduce the damages awarded as a punishment for the wrongful act causing the death of plaintiff’s intestate than it has to reduce the punishment fixed by a juyy under the statute in a conviction for a homicide.
If it should be suggested that such unbridled discretion in the hands of the jury may be used oppressively and probably to the destruction of defendants so sued, the answer is the statute is sui generis, and ita lex scripta est. If the statute is unwise, the matter must be left to the legislative branch of the government, for the court has no authority to question the wisdom of the law or to change its letter or spirit.
For these reasons the application for rehearing should be overruled.
THOMAS, J., concurs in the foregoing.
Addenda.
PER CURIAM. The verdict in this case in the trial court was for $25,000 damages, but upon appeal this court concluded that said verdict was excessive, and that the same should not have exceeded $15,000 under the facts and circumstances connected with the cause; and, as there was no reversible error other than the awarding of excessive damages, the cause was, under Acts 1915, p. 610, amendatory of the act of April 21, 1911 (Laws 1911, p. 587), reversed and remanded unless the plaintiff, within the time specified, remitted all damages in excess of $15,000, but, if such remittitur was made and entered, the judgment as thus reduced should be affirmed.
The remittitur was made and entered,' and the cause is accordingly affirmed, and the question now arising and which has been brought to our attention is whether or -not the plaintiff is entitled to 10 per cent, damages upon the affirmance as provided by section 2893 of the Code of 1907, and whether said judgment as last rendered should draw interest from the date of the rendition in the trial court or in this court.
[17]
While the final judgment as rendered by this court under the above-mentioned facts resulted in an ultimate affirmance of this cause, we do not think that it is such an affirmance as- carries with it the penalty of 10 per cent, damages as provided by said section 2893, as this court) notwithstanding the subsequent affirmance, did not confirm the judgment as originally rendered, but reduced it to the extent of $10,000; and, while the judgment as last rendered was an affirmance, it was such in form only, but not in substance. New York Life Ins. Co. v. Reese, 201 Ala. 673 ; 79 South. 245 . This statute (section 2893) was evidently intended to penalize frivolous or delay appeals and did not contemplate that an appellant would be penalized on account of the mere form of the judgment as last rendered by this court, notwithstanding there was a substantial change or alteration of the judgment in his favor. Indeed, it seems to have been the unbroken custom of this court to exclude the penalty in cases similar to this one, though the fact may not have appeared in the opinion. We therefore hold that the clerk will not include the 10 per cent, damages in the judgment as finally rendered by this court.
[18]
The court is of the opinion, however, that while the judgment as rendered by this court is different from the one rendered by the trial court, it is merely the rendition of such a one as should have been rendered by the trial court and should bear interest'from the date of the trial. Indeed, the latter part of the act of 1915 provides that the judgment entered by this court “shall be and remain the judgment of the lower court and date back to the time of the rendition of the judgment in the lower court.”
All the Justices concur.