On Application for Rehearing
PER CURIAM.Appellant’s counsel takes us to task for not responding to his assignment going to the sufficiency of his plea of contributory negligence. He was right in assuming that we did not respond to it because the only count was one of wantonness, to which contributory negligence is not ordinarily applicable. But his argument is (a) that this action is statutory (the guest statute), and requires plaintiff to prove wanton or willful misconduct, and negligence is not sufficient to support the claim, — therefore contributory negligence is available as a defense to the only sort of action so authorized. We cannot agree with that reasoning. When the statute requires willfullness or wantonness, it does not change the principles which apply to such an action and does not create the defense of contributory negligence which is not applicable to a count of that nature under other circumstances.
It is also argued (b) that the contributory negligence alleged in the plea is that of the plaintiff who is the beneficiary of the action, and that her negligence occurred “a long time before the accident and was not a part of the accident,” in that, she let the child ride with an incompetent driver, known to her to be such, and took the risk of its injury “by any kind of negligence”. But wantonness is not “any kind of negligence”. They denote very different concepts. Wantonness exists only when negligence is absent. Louisville & Nashville R. R. Co. v. Markee, 103 Ala. 160, 15 So. 511; Louisville & Nashville R. R. Co. v. Perkins, 152 Ala. 133, 138(3), 44 So. 602.
It is true that the negligence of a parent suing under section 119, Title 7, Code, is a good defense to an action by the parent charging negligence in causing the death of a minor child. McGough Bakeries Corp. v. Reynolds, 250 Ala. 592, 35 So.2d 332; Peoples v. Seamon, 249 Ala. 284, 31 So.2d 88; Alabama Utilities Service Co. v. Hammond, 225 Ala. 657, 144 So. 822; Alabama Power Co. v. Stogne;, 208 Ala. 666, 95 So. 151; Alabama Great Southern R. R. Co. v. Dobbs, 101 Ala. 219, 12 So. 770, *109774. In the Dobbs case it is observed that the principle of contributory negligence applies only to an injury “which is not recklessly, wantonly or intentionally inflicted”. That was a death case under the same statute. It was said that such negligence will preclude him from recovering damages from the railroad company for killing his child who had gone upon the railroad tracks, unless the railroad company is guilty of more than simple negligence. The court affirmed the judgment for plaintiff on finding that the evidence supported a verdict that defendant was guilty of more than simple negligence notwithstanding plaintiff’s contributory negligence. The same principle is stated in Missouri K. & T. R. Co. v. Perino, 89 Okl. 136, 214 P. 907; 25 C.J.S., Death, § 46, p. 1143, note 74. We see no reason for making a distinction in an application' of the principle of contributory negligence as here contended for.
Appellant’s counsel also seeks a review of the opinion to the extent of holding that the amendment of section 150, Title 7, Code, by the Act of September 5, 1951, General Acts 1951, page 1290, applies to causes of action provided for in section 119, Title 7, Code, by which this cause of action was created. It is our view that the Legislature did act on this status by the Act of 1951, and intended it to apply to sections 119 and 123, supra. We do not find that the argument presents the question in a new or different light than as discussed in the opinion which we think correctly treats the subj ect.
Appellant also excepted to the following portion of the court’s oral charge: “But, if a homicide is unlawful or improperly brought about wantonly, as the result of wanton negligence, the law says a penalty may be assessed against the person who caused that injury as punishment to the person who did it, if she happens to be living or if she be dead, for the purpose of deterring others similarly situated from taking steps of that character. It is for something they ought not to do, and then they make themselves an example so as to deter or restrain others from the commission of that kind of conduct.”
We do not interpret the excerpt from the oral charge, to which exception was reserved, as authorizing damages to punish the deceased charged with wantonly killing plaintiff’s child. But that she being dead, the damages awarded are for the purpose of deterring others similarly situated from taking steps of that character. That is a proper view of the nature of the damages claimed, — the fixation of a sum which will have a tendency to prevent such homicides. Breed v. Atlanta, B. & C. R. Co., 241 Ala. 640(4), 642, 4 So.2d 315. The statute provides for “such damages as the jury may assess”. Code 1940, Tit. 7, § 119.
It does not in terms provide for a punishment. But the purpose is to prevent'homicides, and if the person who is guilty is alive when the judgment is rendered to punish such person. If he is then dead there is no power to punish him, still the jury is authorized to assess such amount of damages against the administrator of his estate as will, in their opinion, best serve the purpose of the law. The trial judge in this case observed that principle in his charge.
The application for rehearing should be overruled.
The foregoing opinion was prepared by Foster, Supernumerary Justice of ’this Court, while serving on it at the request of the Chief Justice under authority of Title 13, § 32, Code, and was adopted by the ’ Court as its opinion.
Application overruled.
LIVINGSTON, C. J., and SIMPSON;.’ STAKELY, GOODWYN and MERRILL, *. JJ-, concur. LAWSON, J., dissents.