Dr. Campbell challenges the Wrongful Death Act, § 6-5-410, on constitutional grounds, alleging that the Act, as applied in this case, violates his right to a trial by jury, his right to due process of law, and his right to equal protection of the laws under the United States Constitution and the Alabama Constitution. Alabama has had a wrongful death act since 1852, when the legislature passed an act "to prevent homicides," §§ 1940, 1941, Code of Alabama 1852; Central of Georgia Ry. v. Ellison, 199 Ala. 571, 579-80, 75 So. 159, 163 (1916); Tatum v. Schering Corp., 523 So.2d 1042 at 1057 (Ala. 1988). An amendment, approved February 21, 1860, was by a later case held to have been expressly made applicable to homicides caused by the "wrongful act, omission or culpable negligence of any officer or agent of any chartered company" (this was the language of § 1941, Code of 1852) as well as to deaths caused by natural persons.

The policy of the Wrongful Death Act is solely to protect human life by deterring tortious acts that result in death and to impose civil punishment on those who take human life. Black Belt Wood Co., supra. Justice Houston's dissent in Tatum v. Schering Corp., 523 So.2d 1042 (Ala. 1988), is perhaps the most complete discussion of the history and policy of the Wrongful Death Act in our precedent. That dissent discusses in detail the "punitive only" nature of the Wrongful Death Act and presents strong, if unsuccessful, arguments against it. This opinion need not confront the long years of precedent holding that the Wrongful Death Act is the sole, and "punitive only," remedy for tortious infliction of death in this state.

I have struggled with this Court's interpretation of the Alabama Wrongful Death Act (Ala. Code 1975, § 6-5-410). See my opinion in Tatum v. Schering Corp., 523 So.2d 1042, 1047-63 (Ala. 1988), which I wrote as an opinion for the Court, but converted into a dissent when I could not obtain the necessary votes for that opinion to carry. Even when researching in preparation for writing Tatum, I was blinded to the fundamental law of the Constitution by the paradigm of the words of § 6-5-410, as interpreted in South North Alabama R.R. v. Sullivan, Adm'r, 59 Ala. 272, 279-80 (1877) ("[what is now § 6-5-410] creates the right — a right unknown to the common law — and provides a remedy," and "[n]o other remedy can be pursued"), which was predicated upon Lord Ellenborough's dictum in Baker v. Bolton, 1 Campbell 493, 170 Eng. Reprint 1033 (1803) ("[i]n a civil Court, the death of a human being could not be complained of as an injury").

See Maryland Casualty Co. v. Tiffin, 537 So.2d 469 (Ala. 1988); Geohagan v. General Motors Corp, 291 Ala. 167, 279 So.2d 436 (Ala. 1973). In Tatum v. Schering Corp., 523 So.2d 1042 (Ala. 1988), the Alabama Supreme Court recognized this and held, at least implicitly, that the monetary settlement of a wrongful-death claim is characteristically punitive in nature even though not characterized as such by the parties. Writing for the Court in Tatum, Justice Maddox stated:

However, this Court has repeatedly held that the general wrongful death statute, § 6-5-410, does not provide for apportionment of damages among joint tort-feasors. Rose v. Rogers, 632 So.2d 434 (Ala. 1994); Tatum v. Schering Corp., 523 So.2d 1042 (Ala. 1988); Black Belt Wood Co. v. Sessions, 514 So.2d 1249 (Ala. 1986). The same rule of nonapportionment also applies to damages awarded under § 6-5-391, the statute creating a cause of action for the wrongful death of a minor.

The court concludes that an equitable adjustment requires that a portion of the Mendel settlement be considered as going only toward Mendel's individual liability and that a credit for the balance be given against the award based on joint liability. Enstar contends that no part of the Mendel settlement should be credited against punitive damages because that award was based on Grassgreen's wrongdoing. Unfortunately, this argument has been rejected by the Supreme Court of Alabama. The current law in this state is that punitive damages cannot be apportioned among joint tortfeasors according to fault and that a settlement of a punitive damages claim by one joint tortfeasor must be credited against a subsequent punitive award against the other tortfeasor. Tatum v. Schering Corp., 523 So.2d 1042 (Ala. 1988); Black Belt Wood Co. v. Sessions, 514 So.2d 1249 (Ala. 1986). Thus, since these damages were based on a state law claim, the court must include punitive damages with joint compensatory damages in that portion of the total award against which a part of the Mendel settlement should be credited.

In the interest of brevity, we do not restate all of the considerations that went into that decision, but we reaffirm our interpretation of the wrongful death statute. In both Black Belt and the more recent case of Tatum v. Schering Corp., 523 So.2d 1042 (Ala. 1988), we discussed at some length the issue of the wrongful death statute and apportionment among joint tort-feasors. We direct readers to those cases for a full discussion of the historical underpinnings of the wrongful death statute, and the Court's position as to a change in its interpretation.

Thus, Industrial Chemical argues that Alabama's wrongful death statute is a penal statute subject to the Eighth Amendment, regardless of its civil character. Although damages recoverable in an Alabama wrongful death action are punitive in nature ( Tatum v. Schering Corp., 523 So.2d 1042 (Ala. 1988)), the wrongful death statute, first passed by the Alabama legislature in 1872, has been historically held to be nonpenal in effect: "Lacerated feelings of surviving relations, and mere capacity of deceased to make money if permitted to live, do not constitute the measure of recovery under the act of Feb. 5, 1872.

Layman v. Hendrix, 1 Ala. 212, 214 (1840). See, also, Tatum v. Schering Corp., 523 So.2d 1042, 1048 (Ala. 1988) (Houston, J., dissenting). When considering punitive damages, however, the defendant's right to fair punishment must be considered above the plaintiff's right to recover the fullest amount of punitive damages.

See Stinnett v. Kennedy, 232 So. 3d 202, 212-13 (Ala. 2016) ("[T]he damages recoverable under [the Wrongful Death Act] are entirely punitive and are based on the culpability of the defendant." (brackets in original) (quoting Eich v. Town of Gulf Shores, 300 So. 2d 354, 356 (Ala. 1974)); Lance, Inc. v. Ramanauskas, 731 So. 2d 1204, 1221 (Ala. 1999) ("[U]nder the crushing weight of 150 years of stare decisis, [the Alabama Supreme Court has] consistently held that [the Alabama] wrongful-death statute allows for the recovery of punitive damages only."); Tatum v. Schering Corp., 523 So. 2d 1042, 1045 (Ala. 1988) ("[D]amages recoverable in a wrongful death action are punitive in nature."). Despite unambiguous precedent to the contrary, Overton asserts several arguments for why she should be permitted to recover under the AWDA.