(dissenting).
I respectfully dissent.
In ruling, as a matter of law, that the warranty count was legally insufficient, the trial court stated, “Punitive damages are not allowed for breach of contract”. Two concepts are inherent in this ruling: First, the legal nature and judicial purpose of “punitive” damages — the exclusive measure of damages in actions brought under the Alabama Wrongful Death Statute1; and secondly, the legal nature and character of an action for breach of implied warranty in Alabama. Before summarizing the respective contentions of the parties, I will first briefly review the history of the cause of action for wrongful death, and then I will analyze the present status of the nature of an action for breach of implied warranty.
The legal conclusion that an individual action for personal injuries abated with the death of an individual is based on the ancient maxim: Actio personalis moritur cum persona — a personal action dies with the person. Although the judicial etiology of this principle is questionable,2 it ultimately became ingrained in the fabric of the common law. Lord Ellenborough, in Baker v. Bolton, 1 Camp. 493, 170 Eng. Rep. 1033 (K.B., 1808), laid down the rule that there was no cause of action for wrongful death. Virtually every legal scholar who has considered the rule has criticized it (“whose forte was never common sense”, says Dean Prosser).3
“ . . . no reason has ever been assigned for the existence of this rule which would satisfy an enlightened court of modern times.” Harris v. Nashville Trust Co., 128 Tenn. 573, 162 S.W. 584, 586 (1914).
Despite its manifest harshness, however, this was the status of the law when Alabama became a state in 1819 and by its Constitution adopted the common law of *177England.4 Historians have credited the industrial revolution, its impact in augmenting the mobility of society and the concomitant increase in fatal accidents, with the intensification of the public’s rejection of this execrable rule: Death did not create liability; rather death extinguished liability. The conscience of society was ultimately satisfied in England in 1846 by the passage of Lord Campbell’s Act. All fifty American states presently have wrongful death statutes. While most of these statutes are modeled after Lord Campbell’s act, which raises a new cause of action for the benefit of certain designated beneficiaries — measuring damages by a broadened concept of pecuniary loss to the family survivors, a minority of the states have death acts in the nature of survival statutes — measuring recovery by the loss to decedent’s estate; and two states, Alabama and Massachusetts, have statutes which, by judicial interpretation, are penal in nature —measuring damages in accordance with the degree of defendant’s culpability. That the Alabama Wrongful Death Statute created a new cause of action that was unknown to the common law has ofttimes been observed by this Court. Parker v. Fies & Sons, 243 Ala. 348, 10 So.2d 13 (1942); Breed v. Atlanta, B. & C. R. Co., 241 Ala. 640, 4 So.2d 315 (1941); Kennedy v. Davis, 171 Ala. 609, 55 So. 104 (1911). Thus, it can be seen that its manifest purpose was to afford redress in cases where no redress obtained at the common law and thereby to ameliorate the harsh rule that denied recovery if the injured party died, while permitting damages if the person lived.
It is only against the background of this historical perspective that the true nature of such punitive damages, as are permitted in death cases in Alabama, can be understood.
“ . . . the purpose and result of the suit therein provided were not a mere solatium to the wounded feelings of surviving relations, nor compensation for the last [sic] earnings of the slain. We think the statute has a wider aim and scope. It is punitive in its purposes. Punitive of the person or corporation by which the wrong is done, to stimulate diligence and to check violence, in order thereby to give greater security to human life; ‘to prevent homicides.’ ” The South and North Ala. RR. Co. v. Sullivan, 59 Ala. 272, at pp. 278, 279 (1877).
I now turn my attention to an analysis of the present nature of an action for breach of implied warranty. The trial court construed Count Two-C as an ex contractu action sounding purely in contract. It is essential to note that in Count Two-C the plaintiff did not attempt to characterize the nature of his action as either contractual or tortious; he merely plead a “breach of implied warranty”. The contractual characterization is, as we have taken pains to observe, the trial court’s legal conclusion.
Purely from a historical standpoint, it is generally agreed that the action of breach of warranty was originally tortious in nature, having its origin in misrepresentation or deceit.
“In its inception the liability was based on tort, and the action was on the case.” Prosser, Law of Torts (4th Ed.) p. 634.
Over the years, because of its close association with the law of sales, the action for breach of warranty gradually acquired a contractual flavor. It was this association that compelled this Court long ago to hold:
“The warranty of the seller of personal property does not, as a rule impose any liability upon him as to third persons who are in no way a party to the contract.” Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, p. 680, 89 So. 64, p. 65 (1921).
*178More recently it was noted in the case of Harnischfeger Corp. v. Harris, 280 Ala. 93, 190 So.2d 286 (1966):
“In effect, we are requested to overturn the long-existing rule in this jurisdiction that there must be privity of contract between a seller and a person injured by a defect in the article sold who seeks to recover for such injury in an action against the seller for a breach of warranty. (citing). Although this is a ‘judge-made’ rule which could be changed by another ‘judge-made’ rule, we entertain the view that, because of its long existence as a part of the jurisprudence of this State, it would be more appropriate for its demise to be effectuated by legislative action, if it is to be overturned.” Ibid, p. 97, 190 So.2d p. 289.
The Legislature has since spoken and by the express language of the Code of Alabama, Title 7A, § 2-318, a seller’s warranty is specifically made applicable to any “natural person if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty”. I must parenthetically note that it is perfectly clear, both from the language of our Homicide Act and from our cases, that an action for wrongful death is the legal equivalent to an action for injury to the person:
“Although the personal injury has resulted in death, yet the action is for the personal injury . . . ” Ala. Great Southern Ry. Co. v. Ambrose, 163 Ala. 220, 50 So. 1030 (1909).5
The effect of § 2-318 is to affirmatively extend the ambit of privity so as to embrace all natural persons who might reasonably be expected to use, consume, or be affected by the product.6
The Alabama version of the Uniform Commercial Code was in effect at all pertinent times referred to in the plaintiff’s complaint and governs the relationship that existed between the plaintiff and the defendants insofar as Count Two-C is concerned. We must, therefore, look to this act to determine the present status and legal personality of an action for breach of implied warranty. That is to say, the requirement of privity having been legislatively resolved, the question as recast now becomes: Is the legal nature of an action for breach of implied warranty under the Alabama “non-uniform” Commercial Code such a “wrongful act or omission” as will sustain a claim under the Alabama Wrongful Death Statute ?
It is in this posture and against this historical context that the appellant urges three theories for the proposition that this Court should allow recovery in a claim for wrongful death based on an action for breach of implied warranty.
Theory No. One: The common law rule of Baker v. Bolton, supra, prohibiting recovery for wrongful death applied only to actions ex delicto and did not extend to contract actions. Lord Campbell’s Act— and its American progeny — necessarily spoke only to this deficiency. Therefore, since causes of action in contract have never been declared extinguished by death *179(and, consequently, not under the Baker v. Bolton influence), the present action is cognizable at the common law, separate and apart from the purview of the Alabama Wrongful Death Statute.7 The premise upon which this theory is based is that, should this Court construe the nature of an action for breach of implied warranty as being “purely contractual”, it should nevertheless be maintainable under common law principles.
Theory No. Two: A historical analysis of the action for breach of warranty indicates that its origin is in misrepresentation or deceit; and, consequently, such actions are not purely contractual and, therefore, are maintainable under our Wrongful Death Statute.
Theory No. Three: The Alabama Legislature, by its enactment of a “non-uniform” version of the Uniform Commercial Code, has so infused tortious characteristics into the nature of the implied warranty that the breach of such warranties is a “wrongful act” as contemplated by the Alabama Wrongful Death Statute.
As to these contentions, the defendants reply that the present action is governed by the Alabama Wrongful Death Statute, which permits only the recovery of punitive damages, and further that punitive damages are not recoverable in actions ex contractu. The defendants each rely principally on Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24 (1961) in support of their position on this issue.
It is not necessary for this Court to consider, nor do the pleadings properly present, the first of the plaintiff’s theories. The trial court’s ruling was made on the assumption that the provisions of Title 7, § 123, governed. The failure of the record to reflect that this theory was specifically called to the trial court’s attention compels me to pretermit any consideration of this theory and I agree that this case is controlled by our Wrongful Death Statute. The trial court should not be reviewed or reversed on a question of law not clearly presented in the proceedings below. Head v. Triangle Const. Co., 274 Ala. 519, 157 So. 2d 389 (1963).
Likewise, plaintiff’s “Theory No. Two” is without merit. Although an academic reconsideration of the historical origin of an action for breach of warranty might have predicted a different result, the Alabama Supreme Court, prior to the enactment of Title 7A, did hold that an action for breach of implied warranty was essentially contractual. Birmingham CheroCola Bottling Co., v. Clark, supra.
Plaintiff’s “Theory No. Three” only is deemed applicable, and to this contention the defendants’ reply must be considered for it correctly expresses the basis of the lower court’s ruling. In referring to Title 7A, I have described it as a "non-uniform” version of the Uniform Commercial Code. This description is as significant as it is appropriate. Specifically, with reference to “injuries to the person in the case of consumer goods”, the Alabama legislature incorporated five separate amendments to the Uniform Commercial Code which must be considered in determining the legal nature of warranties implied by operation of the provisions of Title 7A:
(A) . Subsection (5) was added to Section 2-316 for the purpose of prohibiting the seller from excluding or modifying his liability for damages for injuries to the person in the case of consumer goods.
(B) . Section 2-318 of the UCC was amended so as to exclude the phrase “who is in the family or household of his buyer or who is a guest in his home”, which phrase appeared in the Uniform Commercial Code as the limiting description of the term “natural person”.
(C) . Section 2-714 was amended so as to add the following quoted language at *180the end of Subsection (2) of the uniform version:
“ . . . and nothing in this section shall be construed so as to limit the seller’s liability for damages for injury to the person in the case of consumer goods. Damages in an action for injury to the person include those damages ordinarily allowable in such actions at law.”
(D) . Section 2-719 dealing with the seller’s privilege to contractually modify or limit the buyer’s remedy was amended so as to add Subsection (4) which provides:
“Nothing in this section or in the preceding section shall be construed so as to limit the seller’s liability for damages for injury to the person in the case of consumer goods.”
(E) . Section 2-725 relating to the statute of limitations was amended so as to add the quoted phrase at the conclusion of Subsection (2):
“. . . however, a cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs.”
The obvious import of each of these amendments is to amplify the legal rights of the buyer in the posture of a products liability case beyond the scope of the Uniform Commerical Code; and to this extent they reflect a legislative intent that is harmonious with the judicial trend expressed in a growing majority of cases over the country. See Prosser, The Fall of the Citadel, 50 Minn.L.Rev. 791 (1966). The amendments, in their composite effect, make it clear that the intention of the Alabama Legislature in adopting a modified version of the Commercial Code was to provide the consumer, at least in cases involving “injury to the person”, with a right of action for breach of warranty— the nature of which is as much, if not more, tortious as it is contractual. See Springfield v. Williams Plumbing Supply Co., 249 S.C. 130, 153 S.E.2d 184 (1967); Chairaluce v. Stanley Warner Management Corp., 236 F. Supp. 385 (D. C., Conn., 1964). Additionally, §§ 1-102 and 1-106 mandate a liberal construction with respect to such remedies.8
The purpose of tort law, at least since the beginning of the 20th Century, has been to provide a civil remedy in situations where the plaintiff’s legally protected interests have been injured by the defendant’s violation of publicly imposed duties.9 The legal personality of warranties, which arise in connection with transactions governed by the Alabama Commercial Code, is compatible with traditional tort concepts in that a breach of warranty thereunder is a violation of a publicly imposed duty. The character of the event necessary to invoke the right and remedy created by the Alabama Wrongful Death Statute is defined by the Statute as any “wrongful act, omission. or negligence”. In King v. Henkie, 80 Ala. 505, 60 Am.Rep. 119 (1876), this Court held:
“The condition that the action must be one which could have been maintained by the deceased had it failed to produce death, or had not death ensued, has no reference to the nature of the loss or injury sustained, or the person entitled to recover, but to the circumstances attending the injury, and the nature of the wrongful act or omission which is made the basis of the action.”
This Court in Thaggard v. Vafes, 218 Ala. 609, 119 So. 647 (1927), noted by way of dicta that a “mere breach of contract” is not a wrongful or negligent act, within the meaning of the statute, given a right of action for wrongful death. The plain*181tiff in Thaggard expressly laid his complaint in negligence and for this reason the language quoted above was not necessary to the Court’s opinion which in fact, held that the complaint properly averred a negligent breach of the defendant’s duty. Thaggard was a malpractice suit in which the administratrix of the plaintiff’s estate alleged in substance that the defendant, a practicing physician, undertook for reward to treat the plaintiff’s intestate, and that he “so negligently conducted himself in that regard that plaintiff’s intestate died as a proximate consequence of defendant’s negligence”. The reasoning in support of the actual holding in Thaggard is in harmony with our opinion here. The Court in Thaggard recognized that, in the absence of pleading affirmatively averring a breach of contract, the underlying relationship between a physician and his patient is not “necessarily contractual” and is not, therefore, a “mere breach of contract”.
Similarly, I would hold that the warranties that arise by operation of the Alabama Commercial Code, out of the relationship between the “seller” of a product and “any natural person who might reasonably be expected to use, consume or be affected by” the product, are in the nature of a public duty imposed by law and are not “necessarily contractural” or a “mere contract”; the breach of such warranties are, therefore, maintainable in an action brought under the Alabama Wrongful Death Statute.10
The contention most stringently urged by the defendants, and the one expressed by the trial judge in granting the affirmative charge, is the proposition that punitive damages will not lie for a breach of contract. Treadwell Ford, Inc. v. Leek, supra, cited by the defendants, although so holding, was not a wrongful death case. It is true that punitive damages are not ordinarily recoverable in actions for breach of contract. 22 Am.Jur.2d, Damages, § 245. It is also true that damages under the Alabama Wrongful Death Statute are punitive. Airheart v. Green, 267 Ala. 689, 104 So. 2d 687 (1957).
Judicial juxtaposition of these two rules, however, does not compel the conclusion that an action for breach of implied warranty under the Alabama Wrongful Death Statute would not permit a recovery for punitive damages. Or, stated another way, it does not necessarily follow that an action for wrongful death may not be maintained based on breach of warranty. Our decisions do not allow recovery of punitive damages in a purely personal injury case for simple negligence but do permit their recovery in an action for wanton misconduct. Following the defendants’ reasoning, we would be forced to conclude that a death case based on simple negligence would not lie. The clear wording of our statute, permitting recovery for “[any] wrongful act, omission or negligence”, illustrates the fallacy of this reasoning. A contrary rule would have the effect of increasing the degree of culpability contemplated by our statute as the requisite for recovery in wrongful death actions.
The punitive aspect of the damages permitted in actions brought under the Alabama Homicide Statute relates to the nature and amount of the recovery rather than the underlying right or recovery; it is not the nature of the recoverable damages that permits the maintenance of a “wrongful death action” but the circumstances attending to injury, and the nature of the wrongful act or omission which is made the basis of the action. Breed v. At*182lanta, B. & C. R. Co., supra; King v. Henkie, supra. The sense in which damages recoverable under the Alabama Homicide Act are deemed punitive is sui generis and the term is not used in the identical sense when applied to actions involving wanton misconduct or intentional injury. For example:
(1) A wrongful death action does not abate by the death of the defendant although he can no longer be punished. Bagley v. Grime, 283 Ala. 688, 220 So.2d 876 (1969); Campbell v. Davis, 274 Ala. 555, 150 So.2d 187 (1962).
(2) Punitive damages may be awarded for simple negligence where the injury results in death. Southern Ry. Co. v. Sherrill, 232 Ala. 184, 167 So. 731 (1936); see also Drummond v. Drummond, 212 Ala. 242, 102 So. 112 (1924).
(3) In wrongful death actions against joint defendants the damages are not divided according to the relative culpability of each defendant. Bell v. Riley Bus Lines, 257 Ala. 120, 57 So.2d 612 (1952).
(4) If by the same wrongful act the defendant causes the death of two people, he cannot in the second case mitigate his responsibility by showing that he has already been sufficiently punished by a verdict in the first case. Kansas City M. & B. R. R. Co. v. Sanders, 98 Ala. 293, 13 So. 57 (1893).
The wording of our wrongful death statute does not characterize the recovery but simply permits "such damages as the jury may assess”. Our earliest cases correctly, I think, discerned a legislative intent to equate the value of all human life and established a rule of recovery which reflects that the cardinal factor of culpability is the taking of a human life, regardless of the financial status of the victim, with the amount of recovery keyed to the degree of culpability. Daniel Construction Co. v. Pierce, 270 Ala. 522, 120 So.2d 381 (1959); Richmond & Danville Railroad Co. v. Freeman, 97 Ala. 289, 11 So. 800 (1892); L. & N. R. R. Co. v. Perkins, 1 Ala.App. 376, 56 So. 105 (1911).
I conclude, therefore, that the previous state of actions arising from breach of warranty has been fundamentally changed by the legislative enactment of the U.C.C. The U.C.C. clearly imposes a public duty with respect to an implied warranty of fitness of consumer goods, and the breach of that duty resulting in personal injury may be redressed by recovery of “those damages ordinarily allowable in such actions at law”. Further, when such personal injury results in death, the Alabama Wrongful Death Statute governs that remedy and "those damages ordinarily allowable”.
One basic theme runs throughout the majority opinion — that the purpose of the legislature in passing the Alabama version of the U.C.C. was to regulate commercial transactions and that an action for wrongful death is not a commercial transaction. I would merely point out that no cause of action, be it for wrongful death, breach of contract, or negligence, is a commercial transaction.
It is unfortunate, it seems to me, that the majority opinion looks to the ultimate cause of action, rather than to the underlying transaction, to determine a party’s right to relief for personal injury — fatal or nonfatal — resulting from a breach of warranty and the public duty imposed by the Code arising therefrom. The underlying transaction giving rise to a cause of action, which should be looked to in determining that the party’s right to relief is, in this case, the sale of a defective car. This is the commercial transaction which forms the basis of the instant suit, and which ties the case into the U.C.C. The underlying transaction — the sale of the car —rather than the resulting injury or damage sustained should be the determinative factor.
A literal application of the rationale of the majority opinion would exclude recovery for personal injury — nonfatal as well as fatal. It is my view that such an inter*183pretation ignores the liberal remedies afforded by the Code to the consumer public in products liability cases. Likewise, I am puzzled by the failure of the majority opinion to affirm, overrule, or even mention the long-established rule of Ambrose, supra, reaffirmed by Harris, supra, to the effect that the statutory use of the words “personal injury” includes the ultimate injury — death. Did our legislature in its passage of the U.C.C. not have the right to assume that this Court would follow its own established precedents in giving effect to the remedies provisions of the Code?
I would, therefore, reverse and remand.
HEFLIN, C. J., concurs.. The rule is the same whether the action is governed by §§ 119 or 123, Title 7, Code of Alabama 1940, as amended. Louisville & Nashville R. R. Co. v. Bogue, 177 Ala. 349, 58 So. 392 (1912).
. Smedley, Wrongful Death — Basis of Common Law Rules, 13 Vanderbilt L. Rev. 605 (1960).
. See, e. g., Winfield, Death as Affecting Liability in Tort, 29 Columbia L.Rev. 239 (1929); Malone, The Genesis of Wrongful Death, 17 Stanford L.Rev. 1043 (1965).
. Smith v. United Construction Workers, 271 Ala. 42, 122 So.2d 153 (1960); Title 1, § 3, Code of Alabama 1940.
. While this case was overruled as to its holding on the venue question, the language quoted above has been reaffirmed by this Court in Harris v. Elliott, 277 Ala. 421, 171 So.2d 237 (1965).
. The Official Comments numbered 2 and 3 following § 2-318 in the 1966 Recompilation of Title 7A are not appropriate and do not apply to the language of § 2-318 as actually enacted by the Alabama Legislature. Comments 2 and 3 were obviously drafted by the editors of the Commercial Code as being applicable to the official “Uniform” version of § 2-318. The actual wording of § 2-318 incorporated in the Alabama Act is similar to the language originally employed by the drafters of the UCO. Permanent Editorial Board for the Uniform, Commercial Code, Report No. 3, p. 13 (1967). See Freedman, Products Liability Under the Uniform Commercial Code, The Practical Lawyer (April, 1964); Bailey, Sales Warranties, Products Liability and the UCC, 4 Williamette L.J. 291; see also McDonnell, The New Privity Puzzle, 22 Ala.L.Rev. 455.
. See Gaudette v. Webb, 284 N.E.2d 222 (Mass., 1972) ; Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970).
. See also Tiger Motor Co. v. McMurty, 284 Ala. 283, 224 So.2d 638 (1969).
. Winfield, The Foundation of Liability in Tort, 27 Columbia L.Rev., p. 1 (1927) ; Ashby v. White, 92 Eng.Rep. 126 (1703) ; Nixon v. Herndon, 273 U.S. 536. 47 S.Ct. 446, 71 L.Ed. 759 (1927).
. For cases from other jurisdictions in accord with the present holding, see Kelley v. Volkswagerwerk, 110 N.H. 369, 268 A.2d 837 (1970) ; Dagley v. The Armstrong Rubber Co., 344 F.2d 245 (7th Cir., Ind., 1965) ; Schuler v. Union News Co., 295 Mass. 350, 4 N.E.2d 465 (1936) ; Zostautas v. St. Anthony De Padua Hospital, 23 Ill.2d 326, 178 N.E. 2d 303 (1961) ; Breach of Warranty as a Basis for a Wrongful Death Action, 51 Iowa L.Rev. 1010 (1966) ; Annot. 86 A.L.R.2d 316.