Henderson ex rel. Hartsfield v. Alabama Power Co.

Craig Henderson and Alabama Power Company (“APCo”) appeal and cross appeal, respectively, from a judgment awarding Henderson $15,303.84 in compensatory damages, but reducing to $250,000 a jury’s $500,-000 punitive damages award, in Henderson’s personal injury action against APCo. We affirm in part, reverse in part, and remand.

In 1988, APCo owned and operated an “electrical transmission switching tower” near the Cedar Knoll and Idlewood residential subdivisions of Tuscaloosa, Alabama. The tower, which was constructed in 1957, supported a number of transmission lines carrying 44,000 volts of electricity. It was approximately 33 feet high and 5 feet square and was composed of vertical and horizontal steel bands reinforced by diagonal steel braces.

When initially constructed, the tower was fitted with an “anti-climbing guard” — a barbed wire latticework enclosed within a square steel frame. This framework was installed horizontally on the tower midway between the base of the tower and the first series of wires. The width of the frame exceeded the width of the tower; thus, the barbed wire extended slightly beyond the tower on all four sides. In 1967, APCo attached to the tower — outside the guard — a steel “switch operating rod,” or pole, two inches in diameter.

On September 13, 1988, 12-year-old Craig Henderson and at least three other children climbed the tower, getting past the anti-climbing device by means of the switch operating pole. While Henderson was playing on the tower, his head contacted one of the power lines and the resulting electrical “flash” knocked him from the tower. He was transported by helicopter to the burn unit at the Children’s Hospital in Birmingham, where he was treated for “deep second degree” burns to his face, thighs, and other parts of his upper body.

On November 23,1988, Henderson, by and through his mother, sued APCo on counts alleging negligence and wantonness. The cause proceeded to trial, and, on May 23, 1991, the jury awarded Henderson $15,303.84 in compensatory damages and $500,000 in punitive damages. APCo moved for a judgment notwithstanding the verdict, or, in the alternative, for a new trial; and for a “remit-titur, or, in the alternative, [a vacation of] the punitive damage[s] award.” Henderson, in a “motion for [a] declaratory judgment and for entry of judgment in excess of $250,000,” challenged the constitutionality of Ala.Code 1975, § 6-11-21, which, subject to enumerated exceptions, limits to $250,000 jury awards of punitive damages.

Following a post-verdict review of the damages award as required by Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989), the trial court entered an order expressly finding that the jury’s award was supported by clear and convincing evidence of wantonness and was not excessive. Although “acknowledging] its continuing questioning of the constitutional [validity] of § 6-11-21,” the trial court, nevertheless, reduced the punitive damages award to the statutory limit — deferring to this Court a resolution of the plaintiffs challenge to the constitutionality of the statute.

Both parties appeal the judgment, which was based on the jury’s verdict and the trial court’s ruling on the post-verdict motions. The dispositive issues on appeal, broadly stated, are whether the punitive damages award, which was based on the wantonness count, was supported by the evidence, and, if so, whether § 6-11-21 violates the constitution of Alabama.

I. Wantonness (Case 19019J/.6)

Section 6-11-21 was enacted as part of a “package of bills” collectively called “the Alabama Tort Reform Act.” L. Nelson, Tort Reform in Alabama: Are Damages Restrictions Unconstitutional? 40 Ala.L.Rev. 533, 533 (1989); Act No. 87-185, § 2, 1987 Ala. Acts 251. The section provides:

“An award of punitive damages shall not exceed $250,000.00, unless it is based upon one or more of the following:

“(1) A pattern or practice of intentional wrongful conduct, even though the damage or injury was inflicted only on the plaintiff; or,

“(2) Conduct involving actual malice other than fraud or bad faith not a part of a pattern or practice; or,

“(3) Libel, slander or defamation.”

Although Henderson contends that APCo’s conduct falls within at least one of the first two statutory exceptions to the damages limitation, his contentions are unsupported by the evidence and must be rejected. We address, therefore, the broader question presented by APCo’s motion for a new trial, that is, whether the jury’s finding that APCo wantonly breached the duty owed to the plaintiff was against the weight of the evidence.

The duty owed to trespassing children by individuals and entities maintaining artificial conditions on land is set out by Restatement (Second) of Torts § 339 (1977). That section states:

“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

“(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

“(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

“(e) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

“(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

“(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

See also Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976) (adopting § 339).

In adopting § 339, this Court recognized the special duty owing to a class of plaintiffs, defined in § 339(c), whose natural proclivity for wonder and adventure often exceeds their sense of impending danger. See Motes v. Matthews, 497 So.2d 1121 (Ala.1986). Whether a particular plaintiff falls within this class will ordinarily present a jury question. See Lyle v. Bouler, 547 So.2d 506 (Ala.1989).

APCo contends that § 339 “establishes a special ‘negligence’ standard for the benefit of trespassing children.” Brief of Appellant Alabama Power Company, at 54. It concedes, however, that the duty set forth in § 339 may also form the basis of a cause of action for wantonness — subject to a “heightened knowledge” requirement. Id.

This “heightened knowledge” requirement for wantonness has been defined as “the conscious doing of some act or the omission of some duty [while] under knowledge of existing conditions and while conscious that, from the doing of such act or the omission of such duty, injury will likely or probably result.” Lewis v. Zell, 279 Ala. 33, 36, 181 So.2d 101, 104 (1965). Wantonness will be found where the evidence demonstrates “that with reckless indifference to the consequences [a party] consciously and intentionally did some wrongful act or omitted some known duty which produced the result.” Id.

In the context of § 339, wantonness may be summarized as the defendant’s conscious acts or omissions in the maintenance of an artificial condition on a place where the defendant knows children will likely trespass, accompanied by the awareness that they will thereby expose themselves to a high probability of injury. It need not be shown that the defendant specifically anticipated the trespass of the plaintiff, Tolbert, 333 So.2d at 134, but only that the defendant anticipated trespasses by members of the protected class to which the plaintiff belonged, and that such persons trespassing would thereby be exposed to a high risk of injury due to the defendant’s acts or omissions. The defendant’s knowledge, although the sine qua non of wantonness, “may be made to appear like any other fact, by showing circumstances ... from which the fact of knowledge is a legitimate inference.” Blount Brothers Constr. Co. v. Rose, 274 Ala. 429, 437, 149 So.2d 821, 830 (1962).

A Knowledge of Conditions

APCo argues that liability must be predicated on its knowledge that “children were likely to trespass on the transmission tower” involved in this ease. In fact, the jury was so instructed at APCo’s request. Reply Brief of Appellant Alabama Power Company, at 6 n. 1 (emphasis in original.) Henderson contends that this proposition mischaracterizes the duty set forth in § 339, and that the relevant “place” is the area of the easement in the vicinity of the tower. We need not resolve this issue, because APCo’s awareness of the likelihood that children would attempt to climb the tower itself was clearly inferable from the evidence.

This evidence included, inter alia, testimony and documents demonstrating the extent of knowledge possessed by the utility industry generally. For example, Henderson introduced provisions of the National Electrical Safety Code, which in pertinent part provides:

“b. Climbing

“Readily climbable supporting structures, such as closely latticed poles or towers, including those attached to bridges, carrying open supply conductors energized at more than 300 volts, which are adjacent to roads, regularly travelled pedestrian thoroughfares, or places where persons frequently gather (such as schools or public playgrounds) shall be equipped with barriers to inhibit climbing by unqualified persons or posted with appropriate warning signs.”

National Electrical Safety Code, § 280A.l.b. (1987) (emphasis added).

Henderson also presented the testimony of M.A. Martin, Jr., an electrical engineer, who for 18 years had engaged in equipment evaluation and research and development for Georgia Power Company. In response to questions from Henderson’s counsel, Martin testified:

“Q. Do you have any basis for, in your engineering experience and your experience with Georgia Power, for saying that Alabama Power Company should have recognized that kids might well climb on this tower?

“A. Well, we have known for years that they do that. That is common knowledge.

“Q. That is not something that you have to [do] a good bit of investigation to determine, is it, Mr. Martin?

“A. Well, not unless you want to know specifically who is doing it.

“Q. And it really doesn’t matter, does it, for purposes of safety?

“A. No.”

(Emphasis added.)

In this connection, Martin read into evidence a bulletin issued in 1967 by the transmission department of Georgia Power dealing with public safety. Under the heading “Anti-climb Guards and Warning Signs for Steel Structures,” the bulletin stated:

“The Georgia Power Company has an obligation to the public to take precautionary measures in heavily populated areas because of the dangers of unauthorized persons climbing the steel structures. The installation of anti-climb guards and warning signs are a means to accomplish this. These devices must be installed with considerable care and planning. Keep in mind that the character of neighb.orhoods changes rapidly. It is the purpose of this bulletin to establish certain guidelines for the installation of these devices.”

Moreover, Henderson, through the testimony of APCo’s own personnel, produced evidence of'its subjective knowledge of these conditions. For example, Jimmy Oden, who since 1971 had engaged in the inspection and clearing of APCo’s easements, knew that at least two residential subdivisions — Cedar Knoll and Idlewood — adjoined and abutted APCo’s easement. He also knew that two footpaths crossed the easement in the vicinity of the tower, one of which was 15 feet to 20 feet from the tower. Oden knew that the area’s residents were using these paths, and he testified that children not infrequently walked and played on APCo’s easements, stating that he “assumed” they were doing so in this ease.

Perhaps the most notable evidence of APCo’s knowledge, however, was the existence of the anti-climbing guard itself, which APCo had originally installed to prevent persons from climbing the tower. APCo’s representatives thus stood before the jury in the awkward position of denying knowledge of the very eventualities that it had installed the anti-climbing guard to prevent. The jury was free to reject such reasoning, and apparently it did so.

B. Acts or Omissions

The blueprints for the construction of the Cedar Knoll tower required enclosure of all vertical bars and poles within the framework of the anti-climbing guard. Thus, as originally installed, the anti-climbing guard rendered the power lines atop the tower virtually inaccessible to unauthorized climbers. When APCo added the 2-inch steel pole to the tower in 1967, however, it did not incorporate the pole within the confines of the guard.

Regarding the effect of this “modification” on the effectiveness of APCo’s anti-climbing precaution, Martin gave the following testimony:

“Q. [By counsel for Henderson], Mr. Martin, have you reviewed the provisions in the National Electrical Safety Code ... to try to determine which sections would be applicable, if any, to a tower such as this one?

“A. Yes.

“Q. Did you make any determinations as to whether or not at the time Craig Henderson was injured on this tower, that that tower was either in compliance or not in compliance with the National Electrical Safety Code?

“A. Yes, sir.

“Q. What was your determination?

“A. My determination was that, strictly speaking, Alabama Power Company did a poor job of complying with the Code. But in my opinion, they did not comply with the intent of the Code.

“Q. And what do you mean by that?

“A. Well, they put a barrier up there, and it consisted of barbed wire. Their specification for doing that called for all of these poles that are running parallel to the tower and perpendicular to the ground to be within that barbed wire, but one of them was not. So, in that regard, they didn’t follow their own guidelines. That left footholds and handholds available for young people to use and get around the barbed wire. So, the intent of the Code, in my opinion, was violated.”

(Emphasis added.)

In response to Martin’s statement of his opinion that the modification placed the design of the tower in noncompliance with APCo’s own specifications, as well as with the intent of the National Electrical Safety Code, APCo contends that § 280A.l.b. requires only that towers, even those located in residential areas, be “equipped with barriers to inhibit climbing” or be “posted with appropriate warning signs.” APCo, pointing out the fact that § 280A.l.b. contains the disjunctive, contends that the section thus allowed it to exercise discretion in deciding whether to install a guard or to post a sign.

APCo elicited some testimony that the anti-climbing guard, even after the addition of the switching pole, somewhat “inhibited” climbing. It also produced some testimony, although contradicted, that the tower was posted with a warning sign at the time of the accident. This evidence of compliance with the Code, APCo contends, shields it from liability. We disagree with this contention.

The applicable duty in this case is defined not by § 280A.l.b., but by Restatement § 339. Furthermore, although the violation of a statutory standard may constitute negligence per se, Fox v. Bartholf, 374 So.2d 294 (Ala.1979), it does not follow that compliance with the “letter” of a statutory standard is wownegligence per se. W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser and Keeton on the Law of Torts § 36, at 233 (5th ed.). Under the totality of the circumstances in a particular case, a defendant’s conduct, although technically in compliance with a minimal standard, may be unreasonable — even so unreasonable as to constitute wantonness or willfulness. See Prosser and Keeton, at 233.

Indeed, APCo’s placement of the switching pole outside the anti-climbing guard may be analogized to the removal from machinery of a safety device provided by the manufacturer. In the context of actions by injured workers against co-employees, the legislature has included such a removal within its definition of “willful conduct” — conduct exhibiting a greater degree of immoderation than wantonness. Ala.Code 1975, § 25-5-11(c)(2).

The portent of the tower’s modification was augmented by the presence of “switching stools,” wooden platforms that APCo had placed for the use of its linemen just below the switching pole. Richard Henderson, the plaintiffs brother, testified that these stools facilitated the children’s access to the switching pole, the base of which was approximately three feet above the ground. He further testified to the ease with which the children reached the barbed wire framework by climbing the pole, and then, by stepping on the guard, gained access to the tower’s unguarded upper regions. The plaintiffs evidence also demonstrated that it was feasible to secure the tower from such intrusions at minimal cost.

All this evidence supports the jury’s conclusion that APCo maintained the Cedar Knoll tower in a condition that, it knew, posed a high probability of death or serious injury to the area’s children. A “jury’s verdict is presumed to be correct, and that presumption is strengthened by the trial court’s denial of the motion for a new trial.” Thorne v. C & S Sales Group, 577 So.2d 1264, 1267 (Ala.1991); Whisenant v. Nationwide Mut. Fire Ins. Co., 577 So.2d 909, 911 (Ala.1991). Consequently, the trial court did not err in denying APCo’s post-trial motions. For the reasons explained above, and because we find no merit in other issues raised by the appellant APCo in its cross-appeal (number 1901946), the judgment, as to the issues raised in that appeal, is affirmed.

II. Constitutionality (Case 1901875)

Henderson contends that § 6-11-21 violates a number of provisions of the Alabama Constitution, in particular, Ala. Const. 1901, art. I, § 11, which provides: “That the right of trial by jury shall remain inviolate.” This Court has held that the jury trial right protected by § 11 of the 1901 Constitution is the right as it existed at common law: “The right ... is confined to those classes of cases in which the right existed at common law, or in which it was used at the time of the adoption of the Constitution.” Gilbreath v. Wallace, 292 Ala. 267, 270, 292 So.2d 651, 653 (1974), quoting Alford v. State ex rel. Attorney General, 170 Ala. 178, 188-89, 54 So. 213, 215-16 (1910) (Mayfield, J., dissenting).

This rule is merely a restatement of the principle declared in Thomas v. Bibb, 44 Ala. 721, 722 (1870): “[T]he right of trial by jury is confined to cases in which it was conferred by the common law, to suits which the common law recognized amongst its old and settled proceedings and suits,, in which legal rights were to be ascertained and determined, in contradistinction to those in which equitable rights alone were recognized, and equitable remedies were administered, or in which was a mixture of law and equity.” (Emphasis added) (citing Story on Const. § 1763; Tims v. State, 26 Ala. 165 (1855); Boring v. Williams, 17 Ala. 510 (1850)).

The essence of the common law is its “inherent capacity ... for growth and change.” 15A Am.Jur.2d Common Law § 3 (1976). Its capacity to adapt to the changing needs of society depends on “judicial inventiveness.” Id. Judicially created causes of action, such as the Alabama Extended Manufacturer’s Liability Doctrine, bad faith failure to pay an insurance claim, or 'willful violations of § 339 are part of the warp and woof of the common law and are, therefore, inherently within “those classes of cases in which the right [to a trial by jury as guaranteed by § 11] existed at common law.” Gilbreath, 292 Ala. 267, 270, 292 So.2d 651, 653 (emphasis added). Such causes of action are, as explained by Thomas, clearly “legal” in nature, requiring a determination of fault and, most significantly — “in contradistinction to those in which equitable rights ... were recognized” — damages. Thus, in Moore v. Mobile Infirmary Ass’n, 592 So.2d 156 (Ala.1991), this Court held that Ala.Code 1975, § 6-5-544(b), which limited to $400,000 the amount of “noneconomic” damages recoverable in a medical malpractice action, violated the right to trial by jury as guaranteed by § 11.

Henderson insists that the disposition of this case is controlled by Moore. APCo, however, contends that the Code section here under review differs fundamentally from the statute invalidated in Moore, because § 6-11-21, unlike § 6-5-544(b), purports to regulate only punitive damages, which, APCo contends, are not constitutionally protected. It is therefore apparent that Moore controls the resolution of this issue unless the operational effect of § 6-11-21 differs substantially from the effect of § 6-5-544(b) or the species of damages addressed in § 6-11-21 necessitates a result different from the one reached in Moore. Because we address only rights arising under the Alabama Constitution, our conclusions regarding the constitutionality of § 6-11-21 are based entirely on adequate and independent state law grounds.

A Operation of § 6-11-21

In Moore, we analyzed the operational effect of the damages limitation imposed by § 6-5-544(b). In doing so, we explained:

“Under the procedure mandated by § 6-5-544(b), a jury is empaneled and deliberates, with the expectation that its verdict will have efficacy, an issue of fact singularly within its authority. At the conclusion of deliberations, however, the trial judge is required summarily to disregard the jury’s assessment of the amount of noneconomic loss, that species of damages lying most peculiarly within the jury’s discretion. See Alabama Power Co. v. Mosley, 294 Ala. 394, 318 So.2d 260 (1975); Durham v. Sims, 279 Ala. 516, 187 So.2d 558 (1966); W.S. Fowler Rental Equipment Co. v. Skipper, 276 Ala. 593, 165 So.2d 375 (1963). To the extent that the assessment exceeds the predesignated ceiling, the statute allows no consideration for exigencies presented by each case. Such a requirement has no parallel in the jurisprudence of this state and is patently inconsistent with the doctrines of remittitur or new trial as we have applied them. See also Smith v. Department of Ins., 507 So.2d 1080, 1088-89 (Fla.1987) (“Nor, we add, because the jury verdict is being arbitrarily capped, is the plaintiff receiving the constitutional benefit of a jury trial as we have heretofore understood that right”). It is not relevant, under a § 11 analysis, that the statute has not entirely abrogated the right to empanel a jury in this type of case. The relevant inquiry is whether the function of the jury has been impaired. Because the right to a jury trial ‘as it existed at the time the Constitution of 1901 was adopted must continue “inviolate,”’ the pertinent question ‘is not whether [the right] still exists under the statute, but whether it still remains inviolate.’ Alford v. State ex rel. Attorney General, 170 Ala. 178, 197, 54 So. 213, 218 (1910) (Mayfield, Sayre, and Evans, JJ., dissenting). ‘For such a right to remain inviolate, it must not diminish over time and must be protected from all assaults to its essential guaranties.’ Sofie v. Fibreboard Corp., 112 Wash.2d 636, 656, 771 P.2d 711, 722 (1989).”

Moore, 592 So.2d at 163-64 (footnote omitted.) We then concluded that such “automatic” and “absolute” limitations imposed on the jury’s discretion rendered nugatory the jury’s function — thereby destroying the essence of the right guaranteed by § 11.

Section 6-11-21, like § 6-5-544(b), does not abrogate any cause of action. See Moore, 592 So.2d at 165 (the “right to a trial by jury does not arise in the absence of a cause of action requiring a finder of fact”). Instead, under the law as currently constituted, once the jury, which may be demanded by either party, is selected and empaneled, it is authorized to award every species of damages — including punitive damages. Sections 6-11-20 and -21; Moore, supra; Fuller v. Preferred Risk Life Ins. Co, 577 So.2d 878 (Ala.1991). Like § 6-5-544(b), § 6-11-21 requires the trial judge, after the jury has awarded a sum of punitive damages corresponding to its impression of the character of the defendant’s conduct, to reduce automatically that portion of the verdict exceeding the predetermined statutory limit. We thus conclude that the operational effect of § 6-11-21 differs in no material respect from the mechanics of § 6-5-544(b).

B. Protectability of Punitive Damages

In support of its argument that punitive damages awards are not constitutionally protected, APCo cites Alabama Power Co. v. Rembert, 282 Ala. 5, 208 So.2d 205 (1968); Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24 (1961); Lehigh Portland Cement Co. v. Sharit, 234 Ala. 40, 173 So. 386 (1937). The principle expressed in these cases, however, upon close analysis, forecloses the rule that APCo proposes.

In Rembert, Leek, and Sharit, the issue was whether the trial court had properly instructed the jury on the question of the plaintiff’s interest in punitive damages. In each case, this Court held that the challenged charge was erroneous in that it unconstitutionally impaired the discretion of the jury to award punitive damages.

More specifically, in Rembert, the jury was instructed “that it should assess punitive damages against appellants if appellants were guilty of wantonness.” 282 Ala. at 6, 208 So.2d at 205 (emphasis in original.) On appeal, this Court stated: “The trial court erred in directing the jury that it ‘should’ assess punitive damages, and the failure to leave such assessment to the discretion of the jury has been held to be reversible error.” (Citing Sharit, supra). Similarly, in Leek, this Court held that a challenged jury charge “was erroneous in that it assert[ed] that [the] plaintiff would be entitled to recover punitive damages under the circumstances hypothesized in the charge.” 272 Ala. at 546, 133 So.2d at 25. This Court again explained that the infirmity of the charge was its failure to leave the imposition of punitive damages to the sound discretion of the jury. Id. Thus, if the jury’s discretion was unconstitutionally-impaired by these instructions, which, in effect, directed the jury • to award punitive damages, then a fortiori, a statute interdicting such damages is patently impermissible.

Justice Houston’s dissent in this case criticizes the foregoing discussion of Rembert, Leek, and Sharit. The dissent’s analysis, however, is faulty and its criticism of our reasoning is misdirected. Although it correctly observes that each of those eases contains the statement, “Punitive damages are not recoverable as a matter of right except as provided by statute” (emphasis by Justice Houston), it misapprehends the purpose for which they are here cited. In particular, Justice Houston omits the second sentence of the pertinent quotation from Sharit-.

“Punitive damages are not recoverable as a matter of right, except as provided by the statute. The imposition of such damages in cases where compensatory damages is the measure of recovery may be by the jury, in its sound discretion, imposed for aggravated wrongs. Louisville & Nashville Railroad Co. v. Bizzell, 131 Ala. 429, 30 So. 777; Birmingham Electric Co. v. Shephard, 215 Ala. 316, 110 So. 604.”

234 Ala. at 43, 173 So. at 388 (emphasis added).

“The cases hold that punitive damages are not recoverable as a matter of right, but their imposition is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity of preventing similar wrongs.”

Birmingham Elec. Co. v. Shephard, 215 Ala. 316, 318, 110 So. 604, 605 (1926) (emphasis added; citations omitted).

“The oral charge is furthermore faulty in asserting that plaintiff would under given circumstances be entitled to recover punitive damages. Such damages being apart from compensation are not recoverable as a matter of right. Their imposition is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity of preventing similar wrongs. — 1 Briek.Dig. 523, § 16; S. & N. A. R.R. Co. v. McLendon, 63 Ala. 266.”

Louisville & N. R.R. v. Bizzell, 131 Ala. 429, 437, 30 So. 777, 780 (1901) (emphasis in original; other citations omitted).

In none of the three eases cited was the Court addressing a statute making punitive damages recoverable as a matter of right. Sharit, in which the Court first made the statement, cited only two cases, which do not include any reference to a statute. Indeed, Sharit actually says “except as provided by the statute,” 234 Ala. at 43, 173 So. at 388 (emphasis added). If the Court had a particular statute in mind, it did not say so. Such a statute would probably violate the right to jury trial in the opposite direction from the invasion committed by § 6-11-21. Leek merely repeats the statement from Sharit, omitting “the,” and Rembert merely repeats the statement from Leek.

Obviously, these cases are not cited herein for any proposition that punitive damages are recoverable as a matter of right, but only for the proposition that a legislative prohibition against a jury’s awarding punitive damages in its sound discretion is subject to a challenge similar to the objection to a trial court’s instruction that a jury “should” award punitive damages. Just as a trial court cannot insist that a given jury “should” award punitive damages, the legislature cannot prohibit juries from awarding an amount commensurate to the wrongdoing shown by the evidence in a particular case. A fair reading of Moore reveals that its holding rested on this principle. Such a reading also reveals that the present issue was, in fact, there decided sub silentio.

Section 6-5-544(b) expressly included punitive damages within the class of damages subject to the $400,000 limitation. This Court invalidated in toto the damages limitations provisions of subsection (b) — including the limitation on punitive damages — as viola-tive of § 11. Moore, supra, at 164. If punitive damages awards are, as APCo contends, not constitutionally protected, this Court would have expressly excluded from its holding and rationale that portion of subsection (b) limiting such awards. See Fuller v. Preferred Risk Life Ins. Co., 577 So.2d 878, 884 (Ala.1991) (in a case in which punitive damages are permitted, “[ojnee a jury is demanded by either party, the jury has the constitutional authority to determine what amount, if any, of punitive damages is necessary to punish a defendant for wrongful conduct and to deter future conduct of a like nature”).

Of course, because Moore was addressing a statute that limited both compensatory and punitive damages, there was no need for the Court to address punitive damages separately. Section 6-5-544 limited the recovery of damages for “pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium and other nonpecuniary damage,” as to which a plaintiff clearly has a vested, individual right to challenge the violation of the right to jury trial. There was no suggestion in Moore that the Court should rewrite § 6-5-544 to make it a limitation on punitive damages alone if the Court found that the limitation on nonpecuniary compensatory damages violated the plaintiffs right to jury trial. Therefore, the punitive damages limitation fell along with the compensatory damages limitation, and there was no need in Moore to decide whether punitive damages were subject to the same analysis. Because that argument is made here and addressed in Justice Houston’s dissent, we will answer it now.

The question may be seen as, Was the jury used in punitive damages cases when the Constitution was adopted? Was the right of trial by jury in existence as to punitive damages at that time? The answer to these questions is clearly “yes.”

‘Where the injury is to the person of the plaintiff, the amount of damages cannot be measured by any certain and precise standard. The negligence may be very gross and reprehensible, and in all such cases the jury may give smart money, if in their view the circumstances are such as to require it.”

Rhodes v. Roberts, 1 Stew. 145, 146-47 (Ala.1827) (emphasis added).

“[T]he court charged the jury that ... if the defendants after the [plaintiffs lawful entry onto the land] removed the trees and fence from the land against the plaintiffs consent, the jury were bound to find against such of them as were concerned in it the actual damage caused by such removal, and they had the right, if they thought proper to exercise it, to give the plaintiff vindictive damages.

“... The law in eases attended with circumstances of aggravation, allows the jury to give exemplary damages. — Sedg. on Dam. 39-187. The case of Merest v. Harvey, 5 Taunt. 442, (marg. page,) was an action of trespass quare clausum fregit. No actual damage was sustained by the owner of the land, yet the jury gave £ 500 and the court refused to disturb the verdict, holding that the jury properly imposed exemplary or punitory damages.”

Mitchell v. Billingsley, 17 Ala. 391, 392-94 (1850) (emphasis added).

“Wherever there is a wrongful taking of the property of another, or a wrongful injury done to it, the law implies that the owner has sustained some damage; and although there be in fact no sensible damage from the loss or injury of the property, or from an actual deprivation of its use, the owner is entitled to recover some damages. And if the trespass on the property was accompanied by circumstances of aggravation, ‘smart money,’ or ‘exemplary damages,’ may be assessed by the jury, although the property itself had no pecuniary value.”

Parker v. Mise, 27 Ala. 480, 483 (1855) (emphasis added; citations omitted).

“For an injury resulting from mere negligence, only compensation can be recovered. But, when the negligence is so gross as to show willfulness, wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, then punitive or exemplary damages may be awarded, in the sound discretion of the jury-

"... It depends on the degree of the negligence, whether simple or gross; and the jury are judges of the degree, under proper instructions from the court; and the application of the rule must always depend, more or less, on the circumstances of the case.”

South & North Alabama R.R. v. McLendon, 63 Ala. 266, 274-75 (1879). See also, e.g., Louisville & Nashville R.R. v. Whitman, 79 Ala. 328 (1885); Ala. Great Southern R.R. v. Frazier, 93 Ala. 45, 9 So. 303 (1891); Ala. Great Southern R.R. v. Sellers, 93 Ala. 9, 9 So. 375 (1891).

The manner in which punitive damages were viewed in the late 19th century can be seen from the opinion of the United States Supreme Court in Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729 (1886). In that ease, a Federal circuit court, sitting as a trial court, had sustained a plea to the jurisdiction of the court, on the theory that the actual damages suffered by the plaintiff did not meet the court’s jurisdictional threshold of $500, and dismissed the action. The plaintiff alleged that he had attempted to pay the defendant tax collector with bonds issued by an earlier Virginia legislature, but that the tax collector had willfully refused the payment and had seized the plaintiffs horse to sell at public auction, knowing the bonds to be valid debts of the state. The taxes due were $59.15 and the horse was worth $125. The Supreme Court held that the allegations of the complaint and the prayer for $6000 damages presented a question for the jury as to the amount of damages, and that the trial court encroached upon the province of the jury in holding that the facts alleged in the complaint would not support a verdict sufficient to meet the jurisdictional threshold. Although the cause of action would support an award of noneconomic damages, e.g, damages for injury to the plaintiffs reputation and credit, the Court based its reversal on the right to have a jury award punitive damages. Because the discussion in Barry v. Edmunds is so enlightening, and because it collects numerous pertinent authorities of the time, we quote it at length:

“It is quite clear that the amount of the taxes alleged to be delinquent, for nonpayment of which the seizure was made, is immaterial. It is equally clear that the plaintiff is not limited in his recovery to the mere value of the property taken. That would not necessarily cover his actual, direct, and immediate pecuniary loss. In addition, according to the settled law of this court, he might show himself, by proof of the circumstances, to be entitled to exemplary damages calculated to vindicate his right and protect it against future similar invasions. ‘It is a well-established principle of the common law,’ said Mr. Justice Grier in Day v. Woodworth, 13 How. 362, 371 [Dec.Term 1851],[] ‘that, in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers; but, if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argu-ment_[elipses in Barry] In actions of trespass, where the injury has been wanton and malicious or gross and outrageous, courts permit juries to add to the measured compensation of the plaintiff, which he would have been entitled to recover had the injury been inflicted without design or intention, something further by way of punishment or example, which has sometimes been called “smart money.” This has always been left to the discretion of the jury, as the degree of the punishment to be thus inflicted must depend on the peculiar circumstances of each case.’ In The Amiable Nancy, 3 Wheat. 546 [4 L.Ed. 456] [1818], which was the ease of a marine tort, Mr. Justice Story spoke of exemplary damage[s] as ‘the proper punishment which belongs to such lawless misconduct.’ In Tracy v. Swartwout, 10 Pet. 80, 95 [9 L.Ed. 354] [1836], it was said that ‘where a ministerial officer acts in good faith, for an injury done he is not liable to exemplary damages;’ and this implies its converse, when his acts are not only illegal, but wanton, willful, malicious, and oppressive. In Philadelphia, Wilmington & Baltimore Railroad Co. v. Quigley, 21 How. 202, 214 [16 L.Ed. 73] [1859], Mr. Justice Campbell said: Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief or of criminal indifference to civil obligations.’ In Milwaukee & St. Paul Railway Co. v. Arms, 91 U.S. 489, 492 [23 L.Ed. 374] [1875], the rule was said to apply to actions on the case, for injuries arising from the negligence of the defendant. ‘Redress commensurate to such injuries,’ said Mr. Justice Davis, delivering the opinion of the court, ‘should be afforded. In ascertaining its extent, the jury may consider all the facts which relate to the wrongful act of the defendant and its consequences to the plaintiff; but they are not at liberty to go farther, unless it was done willfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. In that case the jury are authorized, for the sake of public example, to give such additional damages as the circumstances require. The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages.’ In Missouri Pacific Railway Co. v. Humes, 115 U.S. 512, 521 [6 S.Ct. 110, 113, 29 L.Ed. 463] [1885], Mr. Justice Field said: ‘It is the duty of every State to provide, in the administration of justice, for the redress of private wrongs; yet the damages which should be awarded to the injured party are not always readily ascertainable. They are in many cases a matter of conjectural estimate, in relation to which there may be great differences of opinion. The general rule undoubtedly is that they should be precisely commensurate with the injury. Yet in England and in this country they have been allowed in excess of compensation whenever malice, gross neglect, or oppression has caused or accompanied the commission of the injury complained of.’ In the English Court of Common Pleas, it was held, in the case of Bell v. Midland Railway Co., 10 C.B.N.S. 287 [1861], that, where a railway company had obstructed a siding belonging to an adjoining landowner with a high hand and in violation of his rights under an act of Parliament, exemplary damages might justly be given. And the rule was applied in Emblem v. Myers, 6 H. & N. 54, against one who negligently and recklessly pulled down buildings on his own land so as to injure his neighbor with a view to make him give up possession. In that case Baron Bramwell said: ‘If a plaintiff, in his particulars, claimed £500 because the defendant walked over his lawn the jury might award that amount if they thought it was done for the purpose of annoyance and insult.’ In Johnson v. Hannahan, 3 Strobhart, 425 [1849], the Court of Appeals of South Carolina, in an action of trespass quare clausum fregit, where the plaintiff sought to recover damages for an invasion of his close, accompanied, as he alleged, by circumstances of oppression and insult, refused to set aside a verdict for $3000, as excessive, although the actual and mere pecuniary loss, it was shown, did not amount to $20. In Kolb v. Bankhead, 18 Texas, 228, which was an action of trespass for cutting down and carrying off timber from the land of another, where the defendant had wilfully or by gross negligence cut over his own line on the land of the plaintiff, it was said by the Supreme Court of Texas, that, ‘in estimating the damages the jury were not confined strictly to mere compensation for the timber cut and removed. It was their right to look to the particular circumstances of the case, and give such damages as the facts were deemed by them to warrant, and as would, in their judgment, be adequate, not only for compensation, but also for prevention.’

“It is unnecessary, however, further to multiply authorities on this point. The precedents are indefinite in number, and the application of the rule as uniform as the circumstances of the cases are various. There was clear error in the Circuit Court in its ruling, as [a] matter of law, that there could be no lawful recovery, in such a case as that stated in the declaration, of an amount equal to that which is necessary to support the jurisdiction of the court. The same error was repeated in acting upon the statement, that a verdict, if rendered for that amount, would be excessive and set aside for that reason — a statement which could not, at any rate, be judicially made before such a verdict was in fact rendered. It adds, indeed, to the principal error, if any distinction can be made, that which consists in encroaching upon the province of the jury. For nothing is better settled than that, in such cases as the present, and other actions for torts where no precise rule of law fixes the recoverable damages, it is the peculiar function of the jury to determine the amount by their verdict. In Whipple v. The Cumberland Manufacturing Co., 2 Story, 661, 670, Mr. Justice Story well expressed the rule on this subject, that a verdict will not be set aside in a case of tort for excessive damages ‘unless the court can clearly see that the jury have committed some very gross and palpable error, or have acted under some improper bias, influence or prejudice, or have totally mistaken the rules of law by which the damages are to be regulated’ — that is, ‘unless the verdict is so excessive or outrageous,’ with reference to all the circumstances of the case, ‘as to demonstrate that the jury have acted against the rules of law, or have suffered their passions, their prejudices, or their perverse disregard of justice to mislead them.’ In no case is it permissible for the court to substitute itself for the jury, and compel a compliance on the part of the latter with its own view of the facts in evidence, as the standard and measure of that justice, which the jury itself is the appointed constitutional tribunal to award.”

116 U.S. 550, 562-65, 6 S.Ct. 501, 508-09 (1886) (footnote added) (emphasis in original).

Just as it was improper for the trial court in Barry “to substitute itself for the jury ... as the standard and measure of that justice, which the jury itself is the appointed constitutional tribunal to award,” 116 U.S. at 565, 6 5.Ct. at 509, it is improper for the legislature to substitute itself for the jury and to fix an arbitrary, predetermined limit of “that justice, which the jury itself is the appointed constitutional tribunal to award.” Because the above discussion shows that juries awarded punitive damages just as they did nonpecuniary compensatory damages before the adoption of the Constitution of 1901, the discussion in Moore regarding the application of § 11 is equally applicable to both kinds of damages.

The case of Meighan v. Birmingham Terminal Co., 165 Ala. 591, 51 So. 775 (1910), is cited in the dissent for the propositions that “[ejxemplary damages are in no case a right of the plaintiff’ and that “[t]he state [has] the right to remit punitory damages.” 165 Ala. at 599, 51 So. at 778. At 909. These statements were made more strongly than was necessary to the decision of the opinion. The legislation in question had simply approved, after the fact, the taking by the Terminal Company of portions of Sixth Avenue. The Court held that, in light of this and other facts shown, the trial court did not err in dismissing the count alleging a wanton and willful taking, which added to the other counts only the possibility of punitive damages. The first statement, that exemplary damages are not a right of the plaintiff, is consistent with other cases, such as Rembert, Leek, and Sharit, supra, to the effect that punitive damages are discretionary with the jury. As we stated above, the plaintiff does not have a right to receive punitive damages in the same sense that a defendant does not have a right to avoid them: the matter is discretionary with the jury. The second statement from Meighan, that the state had the right to remit punitive damages, is not therein supported by any authority, but seems to be an attempt at extending the principle that punitive damages are imposed on behalf of society to prevent such wrongs.

The dissent’s interpretation of Meighan results, in part, from its misreading of Ala. Const.1901, § 104(28). Section 104 is not a specific directive to the legislature to act in the instances enumerated, as the dissent would have it, but a prohibition against enacting special, private, or local laws on the 31 subjects listed. Although the last sentence of the section states that “[t]he legislature shall pass general laws for the cases enumerated in this section,” this statement cannot be construed to mean that the legislature must pass general laws on all the subjects in the list to accomplish the things that cannot be done by special or private laws. On the contrary, § 104 was clearly designed principally to end legislative responsibility in many of the areas mentioned.

The first item on the list of prohibited private laws is “granting a divorce.” Article VI, § 13, of the 1819 Constitution had provided:

“Divorces from the bonds of matrimony shall not be granted but in cases provided for by law, by suit in chancery: and no decree for such divorce shall have effect until the same shall be sanctioned by two-thirds of both houses of the general assembly.”

The requirement of legislative approval was removed from the 1861 Constitution (Art. VI, § 13), but it is clear that the memory of the provision of the 1819 Constitution was behind the prohibition of Const.1901, Art. IV, § 104(1).

Similarly, § 104(5) prohibits a special, private, or local law “Incorporating a city, town, or village.” In the early days of statehood, this was a major function of the legislature. Toulmin’s Digest of The Laws of the State of Alabama (1823), includes 75 Acts of the territorial and early state legislatures on the subject of “Towns,” with most of those acts establishing, incorporating, or changing the names of towns and cities. Before the 1901 Constitution was adopted, this practice had been abandoned (see, e.g., Code 1876, §§ 1763-1768), but, again, the historical practice of legislative incorporation of cities is what is prohibited by § 104(5).

Directly on the point at issue, the early legislatures had passed private laws remitting fines and penalties against named individuals. See, e.g., the Act “For the relief of John M’Shan and William M’Shan, of Jefferson county”:

“Section 1. Be it enacted by the Senate and House of Representatives of the State of Alabama in General Assembly convened, That the Sheriff of Jefferson county be, and he is hereby, authorized and required, to suspend the collection of a forfeiture of one hundred dollars each, entered up against John M’Shan and William M’Shan, of said county, at September term one thousand eight hundred and twenty-one, as security for William M’Shan, to prosecute John Henry and others for a breach of the peace.

“Section 2. And be it further enacted, That the said John M’Shan and William M’Shan be, and are forever discharged and exonerated from the payment of the aforesaid fine of one hundred dollars each.”

1821 Ala. Acts, p. 110. By Act No. 394 of the 1857-58 Alabama legislature, Austin Mur-phree, sheriff of Blount County, was “released from all liabilities and penalties he may have incurred from his failure to make returns of the election for Governor in the year 1857, all laws to the contrary notwithstanding.” The index to the 1857-58 Alabama Acts shows approximately 60 “Relief Acts” for the benefit of named individuals; 473 Acts were passed by that legislature. Not many of the relief acts were remittances of fines, penalties, and forfeitures, but most of them fit within one of the prohibitions listed in § 104. The passage of numerous such relief acts persisted until the adoption of the Constitution of 1875, after which their number dwindled rapidly and the category disappeared from the index of the Acts in 1882-83.

The Constitution of 1875 included several generalized prohibitions against special or local laws: Art. IV, §§ 23,24, and 25. These apparently proved insufficient to stop the practice, because the legislature continued to pass acts for the benefit of individuals. For example, although the Acts of 1882-83 contain no index topic of “relief acts,” such acts were passed, such as Act No. 261, for the relief of John Rupert, circuit clerk of Escam-bia County. Thus, the itemized prohibitions were included in § 104 of the 1901 Constitution.

The point here is not that the legislature cannot pass general acts remitting fines, penalties, and forfeitures. Rather, the point is that § 104 is not so much a specific authorization to pass such general acts as a prohibition against private acts on the subject. Thus, the point stressed by the dissent (quoting Jefferson County v. Braswell, 407 So.2d 115, 119 (Ala.1981)) that specific provisions of the Constitution prevail over more general provisions, can be seen to be completely irrelevant here.

More pertinent here is the principle that, if two provisions of the Constitution are seen to conflict, and one of them is contained in Article I, the Declaration of Rights, the provision from the Declaration of Rights will prevail. State ex rel. Galanos v. Mapco Petroleum, Inc., 519 So.2d 1275, 1277 (Ala.1987), quoting In re Dorsey, 7 Port. 293, 359 (Ala.1838). Of course, §§ 11 and 104(28) do not conflict, because the latter is not a specific grant of a right to remit fines, penalties, and forfeitures, but is a limitation on the legislative power, just as § 11 is. Nor does the last sentence of § 104 conflict with § 11, because that sentence should not be read as a directive to enact general laws on the subjects enumerated. If it were read as specific authorization for general laws remitting fines, penalties, or forfeitures, it would also specifically authorize general laws “Granting a divorce” and “Incorporating a city, town, or village,” neither of which makes any sense. Thus, the last sentence of § 104 can be read only as a statement of the legislature’s plenary power to enact general laws not otherwise prohibited.

In light of the above discussion, the statement in Meighan that “the state had the right to remit punitory damages,” 165 Ala. at 599, 51 So. at 778, is not only unsupported by, but is contrary to, § 104(28). Moreover, the holding in Meighan was correct regardless of the passage of the act ratifying the Birmingham Terminal Company’s taking of the streets in question. The opinion states:

“There is no pretense that the changes made in the streets, avenues, and alleys of the city, a number of which were involved, were in excess of the necessary and appropriate completion of the general design of serving the convenience of the public and the carriers who were expected to make use of the terminal station. The defendant, without doubt, acted under the authority and in accordance with the direction of the constituted municipal authorities. No circumstance of insult or aggravation is shown, but only the fact that the ordinance of the city under the authority of which the work was done, in so far as it authorized the vacation or abandonment of some parts of streets and avenues, was void because it had not express legislative authority.”

165 Ala. at 598, 51 So. at 777. This alone was sufficient to support the affirmance of the trial court’s judgment based on an affirmative charge for the defendant on count two, which would have allowed the recovery of punitive damages: the plaintiff did not present any evidence that would support an award of punitive damages. The remainder of the paragraph, quoted by the dissent, was unsupported by any citation except a citation to Sedgwick on Damages for the irrelevant proposition that a claim for punitive damages did not survive the death of the wrongdoer.

Whether Meighan was rightly or wrongly decided on this point, it should not be taken as meaning that the Legislature can violate or diminish the jury’s historic, constitutionally preserved function of punishing egregiously wrongful conduct by the imposition of punitive damages in civil actions. Such damages have long been imposed by the jury according to its sound discretion and according to its findings as to the degree of the wrong and the amount of damages necessary and appropriate as punishment. Thus, a limitation on punitive damages such as that imposed by § 6-11-21 clearly impairs the traditional function of the jury.

In performing this function, the jury is an institution of the body politic. In a jury, citizens exercise direct democracy, whereas the legislature consists of representatives of the people, exercising the people’s power and doing their will only indirectly. The jury serves as the conscience of the community. It acts in particular cases, whereas the legislature makes rules for general classes of situations. Legislation cannot take into account the particular circumstances of a particular wrong.

This Court, in Hammond v. City of Gadsden, 493 So.2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So.2d 218 (Ala.1989), articulated, clarified, and refined the common law mechanism of remittitur, so as to protect defendants on a case by case basis from verdicts so excessive or out of proportion to the wrong or to the individual defendant as to violate the defendant’s right not to be deprived of property without due process of law. A legislative act that is not so particularized is a grave imposition on the discretion that has always been given to juries.

Such a limitation could properly be imposed by constitutional amendment, in which the people exercise direct democracy, just as they do when they serve on juries. If the people, as amenders of their constitution, wish to limit their power as jurors, they can do so. Section 11 of the Constitution reserves this power of the people out of the powers granted to the legislature.

With regard to Justice Houston’s assertion that the majority is exercising its will, not its judgment, in holding § 6-11-21 unconstitutional in this case, we say only this: In our considered opinion and judgment, the constitutional protection of the right to jury trial imposed by § 11, and the consequent limitation on legislative power, are much broader, deeper, and more important than Justice Houston would have them be. Thus, we hold that § 6-11-21 is unconstitutional. The judgment, to the extent that it reduced and remitted to $250,000 the jury’s punitive damages award, is reversed, and the cause is remanded with directions to reinstate the full amount of the verdict.

1901946 (Part I) — AFFIRMED.

MADDOX, ALMON, SHORES, KENNEDY and INGRAM, JJ., concur.

HOUSTON and STEAGALL, JJ., dissent.

HORNSBY, C.J., recused.

1901875 (Part II) — REVERSED AND REMANDED WITH DIRECTIONS.

ALMON, SHORES, KENNEDY and INGRAM, JJ., concur.

MADDOX, HOUSTON and STEAGALL, JJ., dissent.

HORNSBY, C.J., recused.

. This proposition was tacitly anticipated in Owens v. Grant, 569 So.2d 707 (Ala.1990), where we noted: "The court instructed the jury on negligence and wantonness as set forth in Restatement (Second) of Torts § 339 (1986), and the juiy returned a verdict in the amount of $125,000 against Owens.” 569 So.2d at 709-10. (Emphasis added.) The judgment was reversed, however, because the trial judge had refused to submit to the jury the question of the applicability of Ala.Code 1975, § 35-15-1 et seq., as a defense to the action.

. Additionally, the net inference derived from balancing the "utility ... of maintaining the condition and the burden of eliminating the danger,” § 339(d), may be an aggravating or mitigating factor, depending on the circumstances.

. One path led from Cedar Knoll to a playground area known as Bowers Park, and the other path connected Cedar Knoll to Idlewood.

. Moreover, under the evidence presented in this case, the jury was warranted in rejecting APCo’s contention that the tower held a warning sign at the time of the accident.

. This Court set forth a portion of the same passage from Day v. Woodworth in South & North Alabama R.R. v. McLendon, supra, 63 Ala. at 274.

. See also Birmingham Electric Co. v. Shephard, 215 Ala. 316, 110 So. 604 (1926); Cox v. Birmingham Ry., Light & Power Co., 163 Ala. 170, 50 So. 975 (1909); and Coleman v. Pepper, 159 Ala. 310, 49 So. 310 (1909).

. In this connection, it is with amazement that we read in Justice Houston’s dissent the implication that by virtue of this opinion, "punitive damages are above the law.” At 914. This assertion is utterly unsupported by our decision, which merely re-establishes the judiciary's common law role in reviewing jury verdicts under factors such as those set forth in Green Oil — a case authored by Justice Houston himself. In other words, instead of a jury’s award being limited by an arbitrary cap of $250,000, regardless of the reprehensibility of the defendant's conduct, each case is treated individually to ensure that no award is too little or too great. Not only does the jury initially perform this function, but the result is reviewed by the trial judge and, finally, by this Court under principles set forth in Green Oil, authored by Justice Houston.