This action was brought under what is generally known as the Homicide Act (section 5696 of the Code of 1923), and appellant's counsel has made quite a vigorous and lengthy attack on same as being repugnant to certain provisions of the Constitution, federal and state. While the damages thereby provided have been heretofore defined as punitive and not compensatory, they must be founded upon an actionable wrong, and for such conduct it is within the police power of the state to fix punitive damages by way of punishment. Indeed, this statute has existed for over a half century, and its constitutional validity was upheld over 30 years ago in the case of Richmond D. R. Co. v. Freeman, 97 Ala. 289,11 So. 800, and we do not think it subject to any of the grounds of attack made in brief of counsel. This holding also is supported by the case of United States Cast Iron Pipe Co. v. Sullivan (C. C. A.) 3 F.2d 794, certiorari denied by United States Supreme Court May 11, 1925, 45 S.Ct. 514, 69 L. Ed. ___.
If the defendant operated an elevator for the purpose of transporting its customers from one floor to another, and a customer was injured while in or entering said elevator, the defendant would be liable to him for injuries proximately caused by the failure to exercise the highest degree of care or skill exercised in the management and operation of elevators of a similar character and nature; this upon the theory that the relation of carrier and passenger existed between them. Morgan v. Saks, 143 Ala. 139, 38 So. 848; O'Rourke v. Woodward,201 Ala. 265, 77 So. 679. The trial court did not, therefore, err in so instructing the jury or in refusing the defendants' instructions predicated upon an ordinary degree of skill and care.
We are not persuaded that the defendant was entitled to the general charge as for a failure to prove the averment, that defendant was engaged in the dry goods business where goods are sold to the public, and that the intestate was at the time of her injury a customer in said dry goods store for the purpose of trading. The very name of the defendant imports the fact that it was engaged in the dry goods business, and the evidence shows that the intestate entered the store and the elevator for the purpose of purchasing a hat.
The only count submitted to the jury, count A, is for the negligent operation of the elevator by the agent or servant in control of same, and there was no charge of negligence for the want of skill or care in the selection of said agent or servant. Therefore the trial court did not err in not permitting the defendant to prove the skill and competency of said agent or servant or the care exercised by the defendant in her selection.
That part of the argument of plaintiff's counsel, which is the basis of assignments of error 46, 47, and 48, was in part responsive to a remark of the defendants' counsel, and the other portion could probably have been inferred by the nature and character of defendants' business. But be this as it may, the trial court excluded it about as affirmatively and positively as possible, and we cannot put the trial court in error to reverse for refusing the motion for a new trial because of this argument. Thames v. L. N. R. Co., 208 Ala. 255,94 So. 487.
We are not persuaded that the trial court was in error for failing to grant the defendant a new trial because the verdict was excessive. The damages are punitive, and we cannot say that the verdict indicates passion or prejudice on the part of the jury, and it is much smaller than many heretofore affirmed by this court wherein the facts showed no greater negligence or aggravation than in the case at bar.
The judgment of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.