Louis Pizitz Dry Goods Co. v. Yeldell

• Decision Date: 28 May 1925
• Docket Number: 6 Div. 382
• Citation: 104 So. 526,213 Ala. 222
• Parties: LOUIS PIZITZ DRY GOODS CO. v. YELDELL.
• Court: Alabama Supreme Court

104 So. 526

213 Ala. 222

LOUIS PIZITZ DRY GOODS CO. v. YELDELL.

6 Div. 382

Supreme Court of Alabama

May 28, 1925

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by Willis Yeldell, as administrator of the estate of Carrie Yeldell, deceased, against the Louis Pizitz Dry Goods Company, for damages for wrongful death of intestate, alleged to have been produced by the collision of defendant's elevator with the body of intestate. From a judgment for plaintiff in the sum of $9,500, defendant appeals. Affirmed.

J.P Mudd, of Birmingham, for appellant.

Beddow & Ray, of Birmingham, for appellee.

ANDERSON C.J.

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 R. & 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...