Benjamin C. Deese v. Jerald Brown, as administrator of the Estate of Raymond A. Trigger, and as administrator of the Estate of Florence Dean Trigger, (Appeal from Houston Circuit Court: CV-19-900622).

Rel: September 27, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2024
_________________________

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_________________________

Benjamin C. Deese

v.

Jerald Brown, as administrator of the Estate of Raymond A.
Trigger, deceased, and as administrator of the Estate of
Florence Dean Trigger, deceased

Appeal from Houston Circuit Court
(CV-19-900622)

BRYAN, Justice.

This appeal is from an order of the Houston Circuit Court ("the trial

court") granting a new trial after a jury returned its verdicts in a
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wrongful-death action that arose from an automobile collision. Jerald

Brown, as the administrator of the estate of Raymond A. Trigger,

deceased, and as the administrator of the estate of Florence Dean

Trigger, deceased, sued Benjamin C. Deese, alleging negligence and

wantonness. The jury returned a verdict in favor of Brown, with regard

to Florence's death, for $50,000 and in favor of Brown, with regard to

Raymond's death, for $1. Brown moved for a new trial, arguing that the

verdict with regard to Raymond's death was inadequate and did not

afford Raymond's wrongful-death beneficiaries equal protection of law.

The trial court granted the motion and ordered a new trial. Deese

appealed. For the reasons explained below, we reverse the trial court's

order granting a new trial and remand this case with instructions to the

trial court to enter a judgment on the jury's verdicts.

Background

The automobile collision made the basis of this suit occurred in the

late afternoon on November 5, 2018. Florence was the passenger in a

vehicle driven by her husband, Raymond. They had stopped their vehicle

off the road at their mailbox, which was located across the road from their

driveway. Raymond made a right turn from the mailbox into their

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driveway, thus crossing both lanes of travel and entering into the path of

a truck being driven by Deese, who was driving home from work. Deese's

truck struck the passenger side of the Triggers' vehicle. Florence died at

the scene of the collision. Raymond died from his injuries in January

2019.

Brown, as the administrator of both estates, sued Deese pursuant

to the wrongful-death statute, § 6-5-410, Ala. Code 1975, asserting claims

of negligence and wantonness. The parties argued extensively at trial

about questions of causation and contributory negligence. The evidence

underlying those arguments is irrelevant to the narrow issues presented

in this appeal, which do not involve the sufficiency of the evidence

supporting the verdicts.

The trial court instructed the jury on negligence, wantonness,

contributory negligence, the applicable rules of the road, and damages.

Regarding contributory negligence, the trial court instructed: "If

Raymond['s] … conduct was contributory negligen[ce], he cannot recover

on his claim that … Deese was negligent. … If you find that both parties

were guilty of simple negligence and each is a proximate contributing

cause, then neither party can recover damages from the other."

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Regarding damages, which are exclusively punitive in wrongful-

death cases, the trial court instructed:

"[T]he damages in this case are punitive and not
compensatory. Punitive damages are awarded to preserve
human life, to punish the defendant, … Deese, for his
wrongful conduct, and to deter or discourage … Deese and
others from doing the same or similar wrongs in the future.
The amount of damages must be directly related to … Deese's
culpability. And by that I mean how bad his wrongful conduct
was. You do not consider the monetary value of Raymond['s]
… or Florence['s] life because the damages are not to
compensate the estate of the Triggers or … -- or Raymond['s]
… or Florence['s] family from a monetary standpoint because
of their death. The amount you'll award is within your
discretion based on the evidence and the guidelines in this
instruction."

The trial court also instructed the jury regarding nominal damages:

"Nominal damages are a small amount of money awarded, for example,

one dollar. When you are reasonably satisfied from the evidence that

Raymond and Florence … have been harmed but [Brown] has not proved

the amount[] you should award." These instructions were all given

without objection.

After some deliberation, the jury returned to the trial court with a

question. The trial court received the question with counsel for the

parties present. The foreperson asked: "Well, we were asking if we found

both parties at fault, could we award Mrs. Trigger instead of Mr. Trigger
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or does it cancel out if we are -- find both parties at fault?" The trial court

consulted with counsel outside the presence of the jury. All agreed to the

following answer, which the trial court gave to the jury: "The answer to

the question of -- of can you find for one party and not the other is yes.

And the answer, does it cancel each other out, is no." The foreperson

expressed understanding of the answer, and the jury returned to its

deliberations.

The jury then completed verdict forms, finding in favor of Brown,

with regard to Florence's death, and awarding damages of $50,000 and

finding in favor of Brown, with regard to Raymond's death, and awarding

damages of $0. Outside the presence of the jury and off the record, the

trial court and counsel discussed the verdicts. The trial court then

recalled the jury and gave further instructions regarding the verdict

regarding Raymond's death:

"I want to address the verdict form relating to …
Raymond Trigger. … I'm going to read you two of the
instructions again. Okay? And before I do, let me make a
simple statement as to the law, is that when -- when -- the
plaintiff's damages cannot be zero dollars."

The trial court then gave the instructions regarding damages and

nominal damages again. Thereafter, one juror asked a question: "Yeah.

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So instead of zero, we're supposed to do one dollar?" The trial court

responded: "Damages are within y'all's discretion according to those two

instructions I just gave you." The juror asked further: "Okay. You said

the zero amount wasn't allowed?" The trial court responded: "Zero is not

allowed by law." Neither party objected to those instructions and

answers by the trial court. The jury again deliberated and returned a

verdict in favor of Brown, with regard to Raymond's death, and against

Deese and assessed damages at $1. The trial court dismissed the jury,

and the verdicts were later entered into the record.

Brown filed a motion for a new trial or, alternatively, an award of

costs. Brown argued that the verdicts were inconsistent and that the

inconsistency was the result of confusion stemming from the $0 award

that had been rejected by the trial court. Regarding the $1 award

regarding Raymond's death, Brown argued that the verdict was

inadequate. Brown's argument in that regard was not that the $1 award

was inadequate to punish Deese but, rather, that the award did not

adequately compensate the wrongful-death beneficiaries for their

suffering and the estates for the costs of litigation. Thus, as an

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alternative to a new trial, Brown asked for an award of costs, including

expert-witness fees, which had made up the bulk of the costs of litigation.

In a supplemental motion for a new trial, Brown presented a single

argument, generally referencing the Equal Protection Clause of the 14th

Amendment to the United States Constitution. Brown noted the jury

instructions related to contributory negligence, which had instructed

that, if Raymond was contributorily negligent, there could be no recovery

regarding his death. Brown argued that, "[o]nce the jury found no

contributory negligence on behalf of Mr. Trigger, the assessment of

punitive damages for Mr. and Mrs. Trigger should have been equal."

Brown did not cite any case or other authority demonstrating that the

Equal Protection Clause requires identical punitive-damages awards for

claims arising under Alabama's wrongful-death statute.

Deese responded and argued that the $1 award did not cause the

verdicts to be inconsistent and that punitive-damages awards are not

subject to review on grounds of inadequacy. He also argued that expert-

witness fees are not recoverable under Alabama law, absent some

statutory authorization.

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After a hearing on Brown's motions, the trial court entered an order

granting a new trial. It did not state any reasons for its ruling. Deese

filed a timely notice of appeal.

Standard of Review

"Granting or refusing a motion for new trial rests within the
sound discretion of the trial court; the exercise of that
discretion carries with it a presumption of correctness which
will not be disturbed by this court unless some legal right was
abused and the record plainly and palpably shows the trial
court was in error."

Hill v. Cherry, 379 So. 2d 590, 592 (Ala. 1980).

Analysis

Deese argues on appeal that, under settled law, punitive-damages

awards under the wrongful-death statute are not reviewable on the

ground of inadequacy. See Louisville & Nashville R.R. v. Street, 164 Ala.

155, 51 So. 306 (Ala. 1909). The jury's initial verdict awarding $0 in

damages regarding Raymond's death, Deese admits, was inconsistent as

a matter of law and would have been subject to review and a basis for a

new trial. However, he argues, once the trial court rejected that verdict

and the jury returned with a nominal-damages award, the inconsistency

was resolved and the issue became one of inadequacy, which, he says, is

not subject to review. See Denton v. Foley Athletic Club, 578 So. 2d 1317,
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1318-19 (Ala. Civ. App. 1990). Deese also argues that equal-protection

principles provided no basis for a new trial because Brown's argument to

the trial court was not supported by citation to authority. Deese also

notes that Brown has not addressed that purported ground for a new trial

at all on appeal.

Whether the jury's verdicts present an issue of inadequacy or

inconsistency is a threshold question in this case because, as explained

in more detail below, a trial court can properly review a jury's verdicts to

determine whether they are inconsistent but exceeds its discretion when

reviewing a jury's punitive-damages award in a wrongful-death action to

determine whether it is inadequate. Thus, we first address the nature of

the grounds upon which Brown sought a new trial in the trial court before

considering the substance of his arguments. Finally, we address Brown's

reliance in the trial court on the Equal Protection Clause as an

alternative ground for a new trial.

I. Inconsistency vs. Inadequacy

Brown's arguments below were limited to the ground of inadequacy.

He effectively conceded to the trial court that the legal inconsistency

created by the jury's initial $0 award regarding Raymond's death had

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been resolved, but he now argues on appeal that the $1 award regarding

Raymond's death and the $50,000 award regarding Florence's death are

inconsistent.

The Court of Civil Appeals aptly explained the distinction between

the inconsistency and the inadequacy of jury verdicts in Denton, 578 So.

2d at 1318-19:

"The Alabama Supreme Court has repeatedly held that
where a jury in a negligence action returns a verdict for the
plaintiff but awards no damages such a verdict is inconsistent
on its face as a matter of law. Thompson v. Cooper, 551 So.
2d 1030 (Ala. 1989) (emphasis added). See also Clements v.
Lanley Heat Processing Equipment, 548 So. 2d 1345 (Ala.
1989); Moore v. Clark, 548 So. 2d 1352 (Ala. 1989); Stinson v.
Acme Propane Co., 391 So. 2d 659 (Ala. 1980); 15A Ala.
Digest, New Trial, Key No. 60 (1959). Without exception,
these cases have pertained to juries which find the defendant
negligent without awarding any damages to the plaintiff.
Such verdicts are inherently inconsistent because they seek
to establish negligence even while rejecting an essential
element of the negligence claim.

"No such inconsistency has been found in cases where
the plaintiff has been awarded some amount of damages,
however small; rather, the issue in these cases has been the
inadequacy of the award in light of the actual damages
proven. See Benson v. Vick, 460 So. 2d 1309 (Ala. Civ. App.
1984) (award of $1.00 held inadequate compensation for
actual damages); Jackson v. Roddy, 224 Ala. 132, 139 So. 354
(1932) (damages award of one cent held inadequate); 7A Ala.
Digest, Damages, Key No. 130(4) (1955). It is thus the
absence of damages, not the deficiency thereof, which renders
the entire verdict inconsistent.
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"There is no such absence in this case. The jury's verdict
did include an award of damages, albeit a minuscule one.
While the amount of the award may appear inconsistent with
the amount of actual damages proven, the verdict itself is not
inconsistent as a matter of law."

See also Daniel v. Passmore, 998 So. 2d 1079 (Ala. Civ. App. 2008). Thus,

the jury's initial verdict awarding $0 in damages regarding Raymond's

death would have been inconsistent as a matter of law because such an

award would indicate both that the jury found Deese liable for negligence

but also that Brown had not satisfied the damages element of that

negligence claim. See Downs v. Goodwin, 827 So. 2d 122 (Ala. Civ. App.

2002) (holding that $0 damages award in suit arising from automobile

accident was inconsistent). The trial court rightly did not allow that

verdict to stand.

Regarding the $1 verdict, the issue is more complicated. Deese

implies on appeal that inconsistent verdicts are limited to situations

involving $0 damages awards and that, once the trial court resolved that

problem, the issue became one of inadequacy. This is in harmony with

the explanation of the distinction between the inconsistency and the

inadequacy of jury verdicts in Denton, quoted above. However, Brown

correctly notes that there is a broader set of circumstances where verdicts

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may be inconsistent. Such situations usually occur when a jury's verdicts

on multiple claims are somehow mutually exclusive or conflict with

instructions given by the trial court.

This Court has explained:

"A verdict has been described as 'inconsistent' when the
jury 'inconsistently resolved the same issue in two separate
counts,' State Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293,
319 (Ala. 1999), when the verdict appears to be 'the result of
confusion,' City of Bessemer v. Foreman, 678 So. 2d 759, 760
(Ala. 1996), or when the record in a case does not reveal a
situation in which the jury's decisions can coexist, Ex parte
Alfa Mut. Ins. Co., 799 So. 2d 957, 962 (Ala. 2001). See also
Smith v. Richardson, 277 Ala. 389, 391, 171 So. 2d 96, 97
(1965) (stating that differing verdicts on separate but
identical claims filed by separate parties were 'clearly
inconsistent, having been rendered at the same time by the
same jury, on identical facts, [and having] render[ed]
speculative what the jury intended by its verdicts. Patently,
the verdicts indicate confusion on the part of the jury.'). When
a jury verdict is inconsistent, the proper remedy is a new trial.
Bessemer, 678 So. 2d at 760. This is so because 'any attempt
to reconcile the inconsistencies in a verdict must be based on
mere speculation about the jury's intent.' Id.; see also A.L.
Williams & Assocs., Inc. v. Williams, 517 So. 2d 596, 598 (Ala.
1987) ('Where the jury verdict is the result of confusion or is
inconsistent in law, the trial court should grant a new trial.
A new trial is necessary, because once the jury is dismissed
any attempt to reconcile the inconsistencies in a verdict
amounts to mere speculation about the jury's intent.' (citation
omitted))."

Jones Express, Inc. v. Jackson, 86 So. 3d 298, 303-04 (Ala. 2010) (jury

found employee not negligent but found employer guilty of negligent
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hiring, retention, and supervision, thus finding both that employee did

and did not run red light). See also Johnston v. Castles & Crowns, Inc.,

259 So. 3d 643, 653 (Ala. 2017) (jury acted contrary to instruction to

consider unjust-enrichment claim only if it did not find against plaintiff

on conversion and conspiracy claims); State Farm Fire & Cas. Co. v.

Slade, 747 So. 2d 293 (Ala. 1999) (jury found that insurance company had

not breached contract and that it had breached contract and was guilty

of bad faith); City of Bessemer v. Foreman, 678 So. 2d 759 (Ala. 1996)

(jury found contract both invalid and valid); Clark v. Black, 630 So. 2d

1012 (Ala. 1993) (jury award of medical expenses to child instead of to

parents who had paid expenses was contrary to jury instruction, thus

verdict awarding $0 to parents was inconsistent with the verdict for the

child).

The two cases dealing with inconsistent verdicts in this broader

context that seem most like the situation presented in this case are

Barnes v. Oswalt, 579 So. 2d 1319 (Ala. 1991)(plurality opinion), and

Smith v. Richardson, 277 Ala. 389, 171 So. 2d 96 (1965). In Barnes, an

automobile collision had resulted in injuries to a husband and in the

death of his wife. The husband sued for damages for his own injuries and

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asserted a wrongful-death claim regarding his wife's death. The claims

were tried together, and the jury returned a verdict awarding $15,000 in

damages on the husband's personal-injury claim, but returned a verdict

for the defendant on the wrongful-death claim. This Court found the

verdicts inconsistent, reasoning:

"The jury reached its decision based upon the same alleged
negligent act of driving on the wrong side of the road. In
essence, the jury found the defendant negligent on the
personal injury claim, but not negligent on the wrongful death
claim, even though both claims arose from the same
circumstances. We recognize that damages under personal
injury actions and wrongful death actions differ. In personal
injury actions damages are compensatory in nature, while
damages in wrongful death actions are punitive in nature.
Although the jury has discretion in awarding punitive
damages, an award of punitive damages cannot stand where
the jury has mistaken the rules of law in awarding such
damages."

Barnes, 579 So. 2d at 1322.

In Smith, relied on heavily by this Court in Barnes, a child was

struck by an automobile while crossing the street. Her father sued the

driver on the child's behalf as next friend, and he asserted his own

individual claims based on the child's injuries. The father had filed

separate complaints, but the cases were joined for trial and "the verdicts

rendered on the identical facts." Smith, 277 Ala. at 391-92, 171 So. 2d at

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97. The jury returned a verdict for the defendant in the child's case and

a verdict for the father in his case, awarding him more than $5,000 in

damages. Thus, the jury essentially found the defendant both negligent

and not negligent. The Court noted the mirror appellate arguments

asserted by the defendant and counsel for the child -- specifically, that

the jury's favorable verdict for the plaintiff or the defendant in one case

necessitated a favorable verdict for the plaintiff or the defendant in the

other case. The Court explained: "The verdicts, clearly inconsistent,

having been rendered at the same time by the same jury, on identical

facts, renders speculative what the jury intended by its verdicts.

Patently, the verdicts indicate confusion on the part of the jury." 277 Ala.

at 391, 171 So. 2d at 97. Thus, this Court declined to treat the verdicts

as if they had been entered in separate cases. Instead, the Court

considered analogous rules relating to verdicts as to joint defendants,

found the verdicts inconsistent, and determined that a new trial was

warranted.

In this case, Brown argues on appeal that the verdicts containing

differing damages awards regarding Florence's death and Raymond's

death, which were returned at the same time by the same jury on

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identical facts, show confusion on the part of the jury and render the

verdicts inconsistent. Critically, however, this Court's decisions in

Barnes and Smith were not based on differences in the amounts of

damages awarded. The inconsistencies in both of those cases lied instead

in the Court's conclusion that, on the same set of facts, the juries had

found the defendants both negligent and not negligent. This is not the

situation presented here.

In this case, it is clear that Brown is concerned with the adequacy

of the jury's nominal award of $1 in damages for Raymond's death and

not with any inconsistent findings inherent in the jury's verdicts. He

asserts: "[T]he confusion was not cured, and the jury was essentially left

with the impression after the second jury question in open court that a

verdict for One Dollar ($1.00) would be appropriate." Brown's brief at 21.

However, Brown has identified no error in the trial court's instructions

to the jury that a $1 award could be appropriate under certain

circumstances.

The trial court's original instructions to the jury included a charge

on nominal damages. That was fully consistent with Alabama law,

because nominal damages can be appropriate in wrongful-death cases.

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See Richmond & Danville R.R. v. Freeman, 97 Ala. 289, 298, 11 So. 800,

803 (1892) ("The negligence of a defendant[,] while sufficient to make out

a technical cause of action, and plaintiff's right to recover judgment,

might yet be so slight or so characterized by mitigating circumstances as

that the jury would be justified in the imposition of such punishment only

as is involved in the assessment of merely nominal damages, since there

is no question of compensation or actual damages to be considered.").

Tellingly, Brown did not object to the trial court's nominal-damages

instruction, and he admits on appeal that the charge was a correct

statement of law.

The jury's first question to the trial court seemed to inquire whether

the jury could award differing amounts of damages on the wrongful-death

claims. On behalf of the jury, the foreperson asked: "Well, we were asking

if we found both parties at fault, could we award Mrs. Trigger instead of

Mr. Trigger or does it cancel out if we are -- find both parties at fault?"

Neither party objected to the Court's affirmative response that the jury

could "find for one party and not the other." Neither party asked that the

jury be further instructed regarding contributory negligence in response

to the fault-related part of the jury's question.

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When the jury returned a verdict awarding $0 in damages

regarding Raymond's death, the trial court again instructed the jury

regarding both punitive and nominal damages. Again, no party objected

to those charges, and no party requested that the jury be charged again

on contributory negligence. One juror asked if the jury was "supposed to"

award $1. Neither party objected to the trial court's response that the

damages award could not be $0, but was otherwise within the jury's

discretion, consistent with the instructions on both punitive and nominal

damages.

Thus, the jury was instructed, without objection from any party,

that it could award differing amounts of damages on the wrongful-death

claims and that it was within its discretion to award nominal damages

regarding Raymond's death. " 'Unchallenged jury instructions become

the law of the case.' " Johnston, 259 So. 3d at 651 (quoting Clark, 630 So.

2d at 1017)(both cases finding a new trial appropriate because the jury

had failed to follow unchallenged instructions). Having failed to object to

the jury charge on nominal damages, Brown was precluded from arguing

that the charge confused the jury and warranted a new trial. See Lance

v. Ramanauskas, 731 So. 2d 1204, 1213-14 (Ala. 1999) (having failed to

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object to jury charge, party was precluded from arguing that the charge

confused the jury and warranted a new trial).

Had Brown objected to the charges and sought a new trial based on

some defect in the trial court's rulings, the trial court's review of the jury's

verdict might have been appropriate. See Hughes v. Southern Haulers,

Inc., 379 So. 2d 601, 603 (Ala. Civ. App. 1980) (holding that review of

verdict in wrongful-death case is precluded when "sole ground for

granting the new trial is the inadequacy of the sum assessed" but that

review is appropriate when errors complained of are "rulings of the trial

court allegedly affecting the award"). However, he made no such

objection, and his motion for a new trial did not assert such grounds.

Therefore, Brown's complaint that "the jury was essentially left with the

impression … that a verdict for One Dollar ($1.00) would be appropriate,"

Brown's brief at 21, relates instead to Brown's belief that the amount of

damages awarded was inadequate. However, for the reasons explained

below, the alleged inadequacy of a punitive-damages award in a

wrongful-death case is not a sufficient basis upon which to grant a

plaintiff's motion for a new trial.

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II. Alleged Inadequacy of Punitive-Damages Award Not Reviewable

Deese correctly argues on appeal that, unlike compensatory-

damages awards, Alabama law does not permit the trial court to inquire

into the adequacy of punitive damages in wrongful-death cases. See

Crenshaw v. Alabama Freight, Inc., 287 Ala. 372, 252 So. 2d 33 (1971)

(affirming denial of new trial in wrongful-death action sought on ground

of inadequacy of award); Louisville & Nashville R.R. v. Street, 164 Ala.

155, 51 So. 306 (1910) (reversing order granting new trial in wrongful-

death action based solely on inadequacy of award). Cf. Alabama Power

Co. v. Turner, 575 So. 2d 551 (Ala. 1991) (considering constitutional

challenges to punitive-damages awards in wrongful-death cases and

holding that such awards are within jury's discretion).

Brown acknowledges the rule that an award of punitive damages in

a wrongful-death action is within the jury's discretion and is not

reviewable by the trial court on the ground of inadequacy. However, he

asks this Court to abandon that established rule and to "liberalize the

procedure for post-trial review of an inadequate award of punitive

damages in a wrongful death case." Brown's brief at 28. Primarily,

Brown's argument rests on a supposed unfairness in allowing defendants

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to seek review of allegedly excessive punitive-damages awards while also

denying plaintiffs the ability to seek review of allegedly inadequate

punitive-damages awards.

However, those considerations have already been thoroughly and

squarely addressed by this Court more than a century ago in Louisville

& Nashville R.R., 164 Ala. at 156-60, 51 So. 306-07:

"This appeal, from an order granting a new trial of an
action possible, alone, by virtue of the provisions of the
homicide act (Code 1907, § 2486), and in which the jury
awarded one cent damages, presents the inquiry whether a
trial court may review and revise the amount of the jury's
verdict, where, under the cited statute, the damages are
punitive purely, and the amount to be assessed is left to the
discretion of the jury -- such damages 'as the jury may assess.'
This statute has become fixed in this construction and effect,
viz., that the recovery provided is punitive only. R. & D. R. R.
Co. v. Freeman, 97 Ala. 289, 11 South. 800 [(1892)], among
others cited in the annotations to the statute. Being of that
class of damages, the plaintiff is without legal right to them,
as that right attaches to actual damages suffered. Comer v.
Age-Herald Pub. Co., 151 Ala. 613, 44 South. 673, 13 L.R.A.
(N.S.) 525 [(1907)]. Such damages may be even forbidden, or
affirmatively withheld, by legislative enactment, so far as
impinging rights of property are concerned. In short, such
damages, until a vested property right attaches to them
through a judgment rendered in a party's favor, are not
properly within the protection of Constitutions.

"The chief argument in support of the right of review
and revision here undertaken, on the ground of inadequacy of
the sum assessed in this verdict, is that the right of review
and revision of verdicts on the ground of excessiveness is
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universally admitted, and, proceeding from this as a premise,
counsel for appellee put their argument in its strongest
possible form when they say: 'It is a poor rule that will not
work both ways.' At first blush, the argument appears sound,
and to conclude to impartiality and fairness. But maturer
consideration discovers its vice. That vice lies in the
assumption that the right of the defendant, who complains
against an excessive verdict for punitive damages, is the like
and same character of right of a plaintiff who sought only to
recover punitive damages. As to the former, the defendant, to
discharge the judgment, to follow the verdict, must respond in
a sum in excess of that a proper exercise of the discretion
would have fixed as punitive; in the latter, the plaintiff's
complaint involves no property to which he is, through the
equivalent in damages, entitled. In the former, an obligation,
a liability, is fixed; in the latter, the beneficiary is such, alone,
because the statute intends, primarily, the punishment of the
offender whose wrongfulness has taken human life. In the
former, the estate of the wrongdoer is diminished; in the
latter, the sum recovered is not an asset of the decedent's
estate, not subject to his debts or liabilities, and so
notwithstanding the sum recovered is distributable in
accordance with our statutes of distribution.

"The case, then, is one where the amount of the damages
(purely punitive) is left to the discretion of the jury. The
exercise of this discretion by the jury has never been, so far as
we are advised, the subject of review and revision by trial
courts, even where actual damages were shown and
recoverable. Of course, our books abound in cases where this
court reviewed the action of trial courts instructing juries that
punitive damages might or might not be awarded by the jury
in the given case. But this is an entirely different matter from
revising the jury's judgment merely in the sum assessed, upon
the ground of inadequacy. The statute commits the
ascertainment of the amount to the jury's discretion. In
dealing with new trials, granted or refused, on the ground of
excessiveness of punitive damages stated in the verdict, the
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test has been often found in the inquiry, whether the verdict
was the result of passion, prejudice or oppression. If so, an
order for a new trial should be entered. No such cause could
affect the alleged inadequateness of the punitive damages
assessed, for the reason that no right of the movant, aside
from the right that the jury ascertain, in their discretion, the
sum to be assessed as a punishment, was subject to the
influence of adverse passion or prejudice, or was the result of
a desire to oppress. Appellee's counsel cite a number of
decisions of this court in support of the proposition that the
power of review and revision, on the ground of the inadequacy
of the damages assessed in the verdict, exists at nisi prius.
There can be no doubt of the soundness of that proposition
when actual damages are inadequately assessed. Of this
school of cases may be noted Hardeman v. Williams, 157 Ala.
422, 48 South. 108 [(1908)], where trespass to real and
personal property was the basis of recoverable damages, and
one cent was awarded. It is not held, in that case, that the
sum assessed was inadequate, because the jury should have,
in their discretion, awarded punitive damages; much less
that, if such damages were awarded, the sum could be revised
in the trial court or elsewhere.

"We think the principle, followed to its legitimate effect
and result, forbids the review and revision of a verdict, given
in an action under the homicide statute, on the sole ground of
the inadequacy of the sum assessed, that could only be, and
was, we must assume, so assessed, as the jury's idea of the
punishment due the wrongdoer. Of course, and perhaps it is
unnecessary to state it, we have dealt only with the right of
revision of verdicts in respect of punitive damages, and have
not assumed to treat or doubt the inherent right of trial courts
to purge their records of verdicts rendered by juries guilty of
misconduct usually avoiding the conclusion set forth in the
verdicts. The order granting the new trial is reversed, and
judgment will be here entered overruling the motion for a new
trial."

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Brown presents no argument in response to this reasoning set forth in

Louisville & Nashville R.R., which has been the law in Alabama for

nearly 115 years. We see no reason to depart from it now.

Brown also argues that wrongful-death plaintiffs facing allegedly

inadequate punitive-damages awards have "no … remedy." Brown's brief

at 30. However, as noted above, such plaintiffs are not wholly without

any opportunity for review in appropriate circumstances. For instance,

review may be appropriate when a challenge is made to "rulings of the

trial court allegedly affecting the award." Hughes, 379 So. 2d at 603. No

such challenge was brought in this case.

Instead, Brown's arguments to the trial court related to an alleged

failure to adequately compensate the estates for the costs of litigation or

to compensate the wrongful-death beneficiaries for the loss of their loved

ones. As explained in Louisville & Nashville R.R., a decedent's estate has

no entitlement to punitive damages to defray the costs of litigation.

Moreover, the wrongful-death statute is punitive in nature because it is

designed to prevent the loss of life, not to compensate a family for the loss

of the decedent's life. See Richmond, 97 Ala. at 292-95, 11 So. at 800-02.

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For the foregoing reasons, we decline to depart from more than a

century of settled law on this question. Indeed, as this Court has

explained, permitting trial courts to even consider whether an award is

adequate to punish a defendant would violate the Alabama Constitution.

See Ex parte Vulcan Materials Co., 992 So. 2d 1252, 1261 (Ala. 2008)

("[W]here a jury has awarded punitive damages, a trial court may not,

consistent with the right to a trial by a jury as guaranteed by Ala. Const.

1901, § 11, order an additur of punitive damages under any, or any

combination, of the Green Oil [Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989),]

factors.").

Deese correctly notes that Louisville & Nashville R.R. is controlling

authority in the circumstances presented by this appeal. Brown's

argument in support of a new trial based on the alleged inadequacy of

the punitive-damages award did not present an issue that was proper for

review by the trial court.

III. Equal Protection

The only other ground presented to the trial court for a new trial

was Brown's generalized argument based on principles derived from the

Equal Protection Clause of the 14th Amendment to the United States

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Constitution. However, Brown cited no authority to support that

argument in the trial court, and he totally omits any equal-protection

argument from his brief on appeal. Although "[t]his Court may affirm a

trial court's judgment on 'any valid legal ground presented by the

record,' " we can discern no reason for concluding that the provisions of

the Equal Protection Clause require that a new trial be conducted under

the circumstances of this case. General Motors Corp. v. Stokes Chevrolet,

Inc., 885 So. 2d 119, 124 (Ala. 2003) (quoting Liberty Nat'l Life Ins. Co.

v. University of Alabama Health Servs. Found., P.C., 881 So. 2d 1013,

1020 (Ala. 2003)).

Furthermore, as with Brown's argument that the jury was not free

to award $1 in damages regarding Raymond's death, the trial court

instructed the jury that the damages awards regarding Florence's death

and Raymond's death could be different. This instruction, given without

objection from either party, became the law of the case and precludes a

new trial based on any argument that the awards must be equal. See

Johnston, 259 So. 3d at 651; Lance, 731 So. 2d at 1213-14; Clark, 630 So.

2d at 1017.

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Conclusion

For the foregoing reasons, we conclude that the trial court exceeded

its discretion by granting Brown's motion for a new trial. See Hill, 379

So. 2d at 592; Louisville & Nashville R.R., 164 Ala. at 159-60, 51 So. at

307. Therefore, the trial court's order is hereby reversed, and this case is

remanded with instructions to the trial court to enter a judgment on the

jury's verdicts.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Parker, C.J., and Shaw, Wise, Sellers, Stewart, Mitchell, and Cook,

JJ., concur.

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