116 Mo. App. 235 | Mo. Ct. App. | 1905
(after stating the facts). — Under the common law, in pursuance of the maxin actio personalis moritur cum persona, no right existed in favor of the heirs, distributees or personal representatives of a deceased person for damages for his wrongful death. The right of action which the injured person had, abated with his death and did not survive and no right of action existed in favor of those surviving him because the civil right was merged in the criminal act. [Amer. and Eng. Ency. Law (2 Ed.), 855; Cooley on Torts (2 Ed.), 307; 1 Joyce on Damages, sec. 486; Seward v. Vera Cruz, L. R. 10 App. Cases, 59-70; McNamara v. Slavens, 76 Mo. 331; Vawter v. Railway Co., 84 Mo. 679; Hennessy v. Bavarian Brew. Co., 145 Mo. 112, 46 S. W. 966; Strode v. St. Louis Transit Co., -- Mo. --, 87 S. W. 976.]
Tie Legislature of Missouri, following tie trend of tie legislative wisdom so universally manifested in tiose jurisdictions wiere tie common law obtains and to tie end of supplying tiis deficiency in tie common law, ias provided tire© separate statutes, sections 2864, 2865 and 2866. By section 2865, R. S. 1899, it is provided tiat “Wienever tie deati of a person siall be caused by a wrongful act, neglect or default of another, and tie act, neglect or default is suci as would, if'deati iad not ensued, iave entitled tie party injured to maintain an action and recover damages . . . tie person wio or tie corporation wiici would iave been liable if deati iad not ensued siall be liable to an action,” etc. etc. Section 2866 provides tiat a recovery for suci wrongful deati mentioned in tie preceding section, may be iad by tie same parties and in tie same manner as is provided in section 2864, and on tie measure of recovery in suci case, it provides tiat tie jury may give suci damages “not exceeding $5,000, as tiey may deem fair and just,” witi reference to tie necessary injury resulting from suci deati to tie surviving parties, who' may be entitled to sue, and also having regard to suci mitigating or aggravating circumstances as may iave attended tie wrongful act, etc. Section 2864, on tie same subject on wiici a recovery was iad in tiis case for- $4,500, provides for tie forfeit of tie fixed sum of $5,000 for each wrongful deati occurring as therein provided, and is as
“Whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, servant, or employee whilst running, conducting or managing any locomotive, car or train of cars, or of any master, pilot, engineer, agent or employee whilst running, conducting or managing any steamboat, or any of the machinery thereof, or of any driver of any stage coach or other public conveyance whilst in charge of the same as a driver; and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car, or in any steamboat, or in the machinery thereof or in any stage coach or other public conveyance, the corporation, individual or individuals in whose employ any such officer, agent, servant, employee, master,, pilot, engineer or driver shall be at the time such injury is committed, or who owns any such railroad, locomotive, car, stage coach or other public conveyance at the time any injury is received resulting from or occasioned by any defect or insufficiency, unskilfulness, negligence or criminal intent above declared, shall forfeit and pay for every person or passenger so dying, the sum of five thousand dollars, which may be sued for and recovered: First, by the husband or wife of the deceased ; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased whether such minor child or children of the deceased be the natural bom or adopted child or children of the deceased; Provided, that if adopted, such minor child or children shall have been duly adopted according to to the laws of adoption of the State where the person executing the deed of adoption resided at the time of such adoption; or, third, if such deceased be a minor and unmarried, whether such deceased unmarried minor be a natural bom or adopted child, if such deceased un
In view of what has been said, it would seem unnecessary to cite authorities to the effect that these statutes are in derogation of the common law. That they are so in derogation thereof is obvious. [2 Lewis’ Sutherland Stat. Const. (2 Ed.), sec. 713; Jackson v. Railway Co., 87 Mo. 422; 8 Amer. & Eng. Ency. Law (2 Ed.), 859.]
It is true that statutes may be in part penal and in part remedial and that statutes which provide a penalty recoverable by the party aggrieved are in many cases construed remedial as well as penal and hence in dealing with such statutes the courts are called upon to make proper application of two adverse principles to some extent; that requiring strict construction on account of the penalty, and that requiring a liberal construction to prevent the mischief sought to be deterred and advance the remedy thereby given in favor of the party aggrieved. [2 Lewis’ Southerland Stat. Const. (2 Ed.), sec. 532; 26 Amer. & Eng. Ency. Law (2 Ed.), 661; see also sec. 668.]
In an early case in England against the Hundred, for damages inflicted on plaintiff by a mob destroying his dwelling and furniture, it was said by M'r. Justice Buller in the King’s Bench: “The law may certainly be penal in one part and remedial in another and that is
In full accord with this well-established doctrine that a statute may be both remedial and penal, our Supreme Court, in the later and it seems to us the better considered cases, has repeatedly held that this statute is one of that class, both remedial and penal; remedial in so far as its purpose is to provide compensation to the immediate relatives for the loss of a father, mother or unmarried minor child, and penal in so far as by its terms, it inflicts a penalty or forfeiture for every wrongful death thereunder, whether the person killed be a kind and good husband and father, of large expectancy of life and extraordinary earing capacity, or whether he be a vagabond and a curse, mean, contemptible and cruel to his family, and one who, instead of providing therefor, leads the life of an indolent drone, revelling in vice and crime, consuming the sustenance of his wife and children; and penal, too, because of its object and purpose to deter and punish the wrongdoer for the wrongful death of any citizen, whether he be good or bad. The court, in King v. Missouri Pac. Ry. Co., 98 Mo. 235, 239, 11 S. W. 563 said: “That amount is allowed in the cases therein specified for a twofold purpose, first, compensation, and second, as a penalty to protect the public against repetitions of like wrongs.” And in the case of Philpott v. Missouri Pacific Ry. Co., 85 Mo. 164, l. c. 168, the court said: “The statute is remedial and is designed to be compensatory in part. But it is more than this. The case at bar demonstrates the fact that it cannot be wholly compensatory; for the amount of the recovery being fixed, as it is, is altogether out of proportion to the value of the services of the son for the remainder of the period of his minority. The
It is true that in an early case in this State, Coover v. Moore, 31 Mo. 574, under this .same statute, it was held that from the fact that only certain persons presumed to be interested in the life of the deceased may institute an action under it and that there are large classes of persons whose lives are in no manner protected by the provisions of the act, it appears that the sum which may be recovered is not intended as a penalty but as compensatory damages liquidated by the statute. It seems to us, however, that our court in later cases, has departed from the doctrine of that case, in fact, there can be no doubt about it. That our Supreme Court has departed from that doctrine is manifest not only from the two cases above cited (King v. Railway and Philpott v. Railway Co., supra), but in all the later cases and it seems to us that the later cases on the subject are sound and in accord with the weight of authority the country over. In fact, the reference to this case in Philpott v. Railway Co., 85 Mo. 168, is couched in such language as would seem to shake its authority. As was- said by the learned judge in Marshall v. Wabash Ry. Co., 46 Fed. l. c. 270-271: “It is true that the court in Coover v. Moore said that the damages are compensatory. So they may be in certain cases, and in some cases less than full compensation. But where the plaintiff is not required to offer any evidence proving damages, and the defendant is not permitted to offer any evidence disproving damages, and the recovery is to be one fixed sum in every case, I cannot understand how the statute under
There certainly can be no room, for controversy over the proposition that this statute is not only penal but it is highly penal. It is true it is compensatory as well in many cases. Its very wording is sufficient to impress us with the intention of the legislature to levy a penalty, for it provides that the party shall forfeit and pay for every such death. The word “forfeit” has a well-established meaning in the law. “To forfeit,” is “to divest or to suffer divestiture of property without compensation in consequence of a default or offense, also to pay money as a mulct, or for a default or wrong.” [Anderson’s Law Dictionary.]“Forfeiture has been defined as an involuntary transfer of a sum of money or property imposed by way of punishment for the commission of an offense against the law.” [Anglea v. Com., 10 Graft. (Va.) 696.] The term is also used synonymously with “penalty.” [13 Amer. & Eng. Ency. Law (2 Ed.) 1074.] The primary use of the word forfeit is to lose, and this is also its legal meaning. To forfeit a sum of money means to lose the right to it in favor of another party. [Eakin v. Scott, 70 Tex. 445.] 13 Amer. and Eng. Ency. Law (2 Ed.), 54, treats'of forfeitures, fines and penalties under a common head, saying it is deemed proper to so treat them as they are all included under the generic head “penalty.” But aside from this language employed in the act, which means divesting a sum from one party Avithout his consent because of a wrong against the law, and transferring it to another1 the statute fixes an absolute sum as the measure of damage and authorizes a recovery of $5,000 absolutely without the proof of any damages whatever and the defendant is thereby precluded from introducing any evidence disproving damages. And again, while this statute is partly remedial, it might be in many cases, and no doubt is, purely
The Supreme Court of Kansas, passing upon the New Mexico statute, in which the portion material here is identical 'with that of Missouri, holds it to be highly penal and to such an extent that it has no extra-territorial force and a recovery thereon could not be had in that state. [Dale v. Ry. Co., 57 Kas. 601. See also Oates v. Railway Co., 104 Mo. 514, 16 S. W. 487; Ashe v. Railway Co., 19 Atl. (Md.) 643; Vawter v. Railway Co., 84 Mo. 679; McGinnis v. Mo. Car. & Foundry Co., 174 Mo. 225, 73 S. W. 586.]
The circuit court of the United States for the sonth- - em district of Ohio held the same of the Missouri statute and delivered a very interesting and instructive ' opinion thereon. [Marshall v. Railway Co., 46 Fed. 269.] The Supreme Court of Vermont held the same in a case before it on a statute of Massachusetts, awarding a recovery for not less than $500 or more than $5,000. The . court there said: “And it is to be noticed that the giving of a fixed sum excludes a consideration of the degree of culpability as well as of the loss sustained. We think . the rule given for determining the unascertained part of the recovery is the controlling feature of the statute.” [Adams, Admx., v. Railway Co., 67 Vt. 76 and 81. See also 8 Amer. & Eng. Ency. Law (2 Ed.), 880.]
The American & English Encyclopedia of Law, vol. -8 (2 Ed.), 931, recites the substance of the Missouri statute and in comment thereon, says-: “This is a penal statute, and is therefore to be construed strictly in so far as it fixes the measure of recovery.” That this statute ' is regarded and treated as penal as well as remedial is -sustained by the following cases: Culbertson v. Street Railway Co., 140 Mo. 62, 36 S. W. 834; Senn v. Railway Co., 135 Mo. 519, 36 S. W. 367; s. c., 124 Mo. 625, 28 S. W. 66; Weller v. Railway Co., 120 Mo. 654, 23 S. W. 1061;
It being established beyond per adventure that the statute under consideration is highly penal as well as compensatory or remedial, the rule is well established that such portions of it as confer a remedy are to' be liberally construed in advancement of the remedy and such portions of it as impose a penalty are to be strictly construed in order that the penalty shall be sustained and the statute shall be operative and in full force to the end that the mischief which it seeks to prevent and punish shall be abated or minimized, to say theleast. 2 Lewis’ gutherland Statory Construction (2 Ed.), sec. 337, says: “Penal statutes are those by which punishments are imposed for transgressions of the law. They are construed strictly and more or less so according to the severity of the penalty. . . . But the provisions that enforce the wrong for which a penalty is provided, and those which define the punishment, are penal in their character and are construed accordingly. . . . And the same statute may be remedial for certain purposes, and liberally construed therefor, and at the saíne time be of such a nature, and operate with such harshness upon a class of offendr ers subject to it, that they are entitled to invoice the rule of strict costruction.” Here we have a statute which indeed operates with great harshness upon the offender. It imposes a forfeiture of his goods to the extent of $5,000 and that too, without evidence of pecuniary loss on the part of the party claiming to’ be aggrieved by the alleged wrongful act and precludes the party com
The only exception which we have been able to find to this rule requiring strict construction of statutes which are in their nature penal, is in the case of a statute which provides for more than actual compensation, such as double or treble recovery for the commission of some wrong which would have given the party injured a cause of action at common law for actual compensation, such as trespass, negligence and other common law torts. In such cases, the statute allows to. the party no cause of action for “a newly-created offense,” as mentioned in Riddick v. Governor, 1 Mo. 104; Utley v. Hill,
Onr Supreme Court on this question said, speaking through Judge Scott, than whom no clearer lawyer nor sounder judge ever graced the bench of this State: “The rule which requires penal statutes to be construed strictly is not applicable here for it is a principle that when a party is entitled to an action at common law, and an act of the Legislature comes and gives him an increase of damages, that is not to be taken as a penal statute. [Phillips v. Smith, 1 Strange, 137; Cro. Jac. 413.] Moreover it would seem that the operation of this rule merely restrains such a construction as increases the severity of the punishment.” [Ellis v. Whitelock, 10 Mo. 783.] See also Read v. Chelmsford, supra, where the court said: “It has been held in many instances that where the statute gives accumulative
In observance of this rule, it is obvious from what has been said in the cases that our Supreme Court has considered this statute as penal and one requiring a strict construction. While this identical question has never been before that court, reference to the following cases will clearly demonstrate that the court has looked upon it as a statute fixing a penalty for a recovery of which the suing party must bring himself strictly within its provisions and among other things, demand and recover the precise amount of the penal sum therein provided. The court, in Proctor v. Railway, 64 Mo. 112, while discussing the proposition of whether or not the words “any person” employed in this statute included the right of recovery for the death of a fellow-servant who came to his death by the negligence of his coservant, said, through Judge Norton in the majority opinion:
“If the statute should be thus read, the representatives of such a person as is described in section 3, dying from an injury received while the railroad was being operated, either from the carelessness of the servants engaged in operating it, or, in case of a passenger, from an injury received because of defective road machinery, would be entitled to recover $5,000 as damages liquidated by the terms of the act, the only difference between sections 2 and 3 being that when the death is oc
Judge Henry, in the dissenting opinion in the same case, while dissenting on the main question, used the following language clearly expressing his views on the penal nature of the statute:
“Another circumstance showing the penal character of the second section (2864, R. S. 1899 of Missouri) is that it fixes the amount of recovery inflexibly at $5,000.”
Again he says:
“A man may be a vagabond a curse instead of a comfort to his family, consuming the earnings of his wife and children in debauchery, and disgracing them by his dissipation, yet, if killed under the circumstances bringing the case under the second section (2864) his representatives may recover $5,000 and the jury can give no less.”
And still again he says:
“If, on the other hand, the person killed be an honor and a comfort to his family, earning thousands by his industry and spending it liberally for their benefit, his representatives can recover but $5,000 while under the third and fourth sections the jury can consider the character of the deceased in determining what amount to allow within the maximum.” .
The court, speaking through Judge McFarlane, in Senn v. Southern Railway Company, 124 Mo. 625, 28 S. W. 66, said: “The party guilty of the wrongful act or neglect is made liable by the statute to ‘forfeit and pay’
The rule of strict construction, pays homage only to that cardinal rule in the construction of ail statutes, that the true intention of the lawmakers should be ascertained and carried out. The invocation of this rule, however, can only argue in favor of the penal nature of this statute inasmuch as it is manifest from the use of the word “forfeiture” by the Legislature together with the consideration that no evidence is to be heard and no day in court to be had on the amount of plaintiffs’ damage and the measure of their recovery, that it was intended that the amount named in the statute should be a penalty inflicted as a punishment upon the person guilty of the wrongs therein sought to be prevented. Applying, then, the rule of strict construction to the penal feature of this statute, the conclusion is that the penal sum therein fixed at $5,000 means $5,000. It does not mean $4,500 no more than it means $450 or $45. Indeed, it seems that the Legislature intended that the perpetrator of the mischief sought to be prevented should pay the full penalty levied and did not intend that the private citizen might fritter away that penalty provided by virtue of the authority of the police power of the State for the purpose of preventing wrongs, so that conditions might arise where one offender would pay $5,000 and another he permitted to pay $4,500 and another a much less sum, as might suit the convenience of
The doctrine of the Missouri Supreme Court on this question was clearly stated in Riddick v. Governor, 1 Mo. 104, to be, “It is an incontrovertible maxim of law, that a statute, imposing a penalty for a new created offense, or for a breach of duty, and defining the principal mode in which, and before what tribunal the penalty shall be recoverable, must be strictly pursued.” This doctrine has been adhered to in all of the cases so far as we can ascertain from diligent research and is the sound law on the subject in accord with the authorities of other jurisdictions. [See also Utley v. Hill, 155 Mo. l. c. 274, 55 S. W. 1091; Parish v. Railway Co., 63 Mo. 284; Eads v. Orcutt et al., 79 Mo. App. 511; People Ry. Co. v. Grand Avenue Ry. Co., 149 Mo. 245-253, 50 S. W. 829.]
The authority for the Legislature to provide a statute thus penal and the authority for the courts to sustain and enforce its penalty is to be found in the police powers of the State and rests upon broad considerations of public policy in which the State is an interested party
The State, then, is a interested party, notwithstanding the fact that the amount of the penalty is given to the bereaved relatives on the theory of compensation, for the State can make whatever disposition of its penalties as to it seems proper and the fact that it presents the penalty to the aggrieved party upon their assuming to put the law into operation and collect it, cannot influence the important question involved one way or another. [Missouri Pacific Ry. Co. v. Humes, 15 U. S. 523.] As said, the State is an interested party; that is, in so far as the amount of the penalty is concerned,to see that such penalty which it had thus provided for the better police regulation of the State be maintained in its full measure and certainly cannot suffer the mover of the law in that behalf to thus play and toy with its forfeitures and penaltie&provided. If such is permissible, then it would be competent and proper for the party to sue for $2,000 instead of the penal sum, or if, perchance, it better sub-serves his convenience, to sue for the pitiful sum of $250 or even $1.00 in the court of a justice of the peace, and thus annihilate the penal feature entirely. But it is not necessary to enlarge upon this score as we take it for granted that none will seriously contend that the State’s penalties provided under the police powers can thus be frittered away, whatever might be said on another question.
A second but equally sound reason why the stat
Speaking of a statute which is manifestly in derogation of the common law, our Supreme Court has said: “It cannot be said that one condition is more important than another.” [Sarazin v. Union Railway Co., 153 Mo. 485, 55 S. W. 92; citing Tyler v. Reynolds, 53 Ia. 146; Shearer v. Weaver, 56 Ia. 578; Keegan v. Geraghty, 101 Ill. 26; Ferguson v. Jones, 17 Ore. 204.]
In line with this doctrine of strict costruction and in view of the fact that such statutes are in derogation of the common law, it is the universal rule adhered to by the courts that in actions under these statutes for the death of a person caused by the wrongful act of another, being purely of statutory origin, the person seeking to maintain such action must allege and prove such facts as bring him strictly within the provisions of the statute, and this, is true to the extent that the party suing under the statute, must allege and prove the existence of certain beneficiaries or the non-existence of other persons in accordance with its terms and where the statute imposes certain conditions precedent, they
In the case of Dowd v. Seawell, 3 Dev. N. C. 185-188, the court said: “I conclude, therefore, that wherever the statute gives a certain sum in numero-, that exact sum must be demanded; else it cannot be taken to be the penalty given by that statute.” And again, in Duffy v. Averitt, 5 Ired. N. C. 455-460: “There can be no doubt that when a statute gives as a penalty a sum certain the declaration must claim that precise sum, and the recovery be accordingly; otherwise there would be a variance between the pleadings and evidence and verdict.” See also Cunningham v. Bennett, L. Geo. L. C. B. reported by Mr. Justice Bullen in Nisi Prius (7 Ed.), 196B. And in a Missouri case, decided by this court in 1884, where
So we find the doctrine of strict procedure pervades our law from its earliest history, in cases arising on penal statutes, also upon statutes in derogation of the common law, and in furtherance of this doctrine, it has many times been judicially determined in actions for specific penalties that the amount found by the jury or adjudged by the court must be the precise amount fixed by the statute and neither more nor less than such amount, else it is not the penalty sued for and the statute can have no application in supplying the measure of recovery, there being in such cases no evidence of actual pecuniary loss to sustain the measure of recovery. The verdict or judgment can only be supported and repose upon the fixed statutory penalty in lieu thereof.- [16 Amer. & Eng. Ency. Law, 300; Albright v. Tapscott, 8 Jones L. R. (N. C.) 473; Smith v. Western Union Tel. Co., 57 Mo. App. 59; Kendall v. Western Union Tel. Co., 56 Mo. App. 192; Canastota etc. Plank Road Co. v. Park
From a careful consideration of these fundamental principles and well-founded rules, it seems clear to us beyond cavil of controversy that one suing under the penal section of our statute for a wrongful death must not only bring his case within the provisions of that section by otherwise strict averment and proof but he must as well declare for and seek to recover the precise or full measure of the penalty therein provided, and from this it necessarily follows that in the case at bar, the petition fails to state a cause of action under that section. The three specifications of negligence contained in the petition, however, which were by the court referred to the jury, were such as brought the case within that section had the petition been otherwise sufficient and inasmuch as the trial judge, for this reason, treated the case as coming properly under the penal section and peremptorily directed the jury that in the event of their finding for respondents, the verdict must be for the full amount sued for, $4,500, the judgment cannot be permitted to stand.
Our Supreme court, in Proctor v. H. & St. J. Ry. Co., 64 Mo. 112, in construing this penal section, held that the words “any person” therein employed did not operate to include and give the right of action for the death of a fellow-servant brought about by the negligence of a coservant; that the section under consideration being parcel of the act on this subject, of which sections 2865 and 2866 are also* a part, was in pari materia and should be so construed and read together thereunder in arriving at the true intent of the Legislature. The result of that decision was that Shultz v. Railway Co., 36 Mo. 18, was
The learned judge of the Kansas City Court of Appeals cites Dennick v. Railway, 103 U. S. 11, to the effect that the statute here is not penal in the sense that the courts of foreign states will decline to enforce it and statutes of its class. On this proposition it is to be noted that in the Dennick case, the statute of the State of New Jersey where the cause of action arose, is set out at page twelve and amounts to the same as the third section of our damage act. It only pretends to transmit the cause of action without the highly penal feature contained in the statute under consideration in this case. And further, it appears in the opinion in that case, (pages 20 and 21) that the laws of the State of New Jersey in which the deceased met his death, and the State of New York, in which the action was instituted, were identical, authorizing a recovery by the same representatives for the same distribution, so that case could have no' application here. It is said in the opinion, however, that the question is one which the state courts must settle for themselves upon their respective statutes. And the Missouri court has settled this question along with the courts of Kansas, Maryland and many other States cited supra to the effect that the statute has no extraterritorial force whatever, and where sued upon in a foreign state, a recovery can be had thereon only upon principles of comity between the States having like statutes. In Vawter v. Mo. Pac. Ry. Co., 84 Mo. 679 and McGinnis v. Mo. Car & Fdry. Co., 174 Mo. 235, 73 S. W.
We have examined with much interest the elaborate and interesting opinion of Mr. Justice Cray in Huntington v. Attrill, 146 U. S. 657, cited and relied upon by the Kansas City Court of Appeals and cannot appreciate the forceful application of its doctrine to the question here in judgment. That was a case wherein the plaintiff, a creditor of an insolvent and defunct New York corporation had recovered in the Supreme Court of New York a judgment for a sum exceeding $100,000 against defendant who was a director of such corporation under a statute of that State rendering a director of a corporation liable for the full amount of the stock held by such director if such director should sign and make oath to and cause to be recorded a certificate falsely stating that the whole of the capital stock had been paid in when in fact it had not. On this judgment plaintiff filed his bill in equity in a Maryland court, pleading said judgment and the penal statute of New York under which it had been recovered, praying the court to declare- certain transfers of stock in a gas company in Baltimore as in
The question in decision here was not involved in that case and it is not therefore an authority on this question. The doctrine of that court, however on the question of the transitory nature of actions arising under wrongful death enactments, as evidenced by Dennick v. Railway Co., 103 U. S. 11 and cited approvingly in Huntington v. Attrill, supra, is contrary to that of the Supreme Court of this State as evidenced by Oates v. Railway Co., and Vawter v. Railway Co., supra, and McGinnis v. Mo. Car & Found. Co., 174 Mo. 235, 73 S. W. 586. The fact is, the case of Dennick v. Railway Co., 103 U. S. 11, has been twice considered by our Supreme Court and its doctrine expressly repudiated. Vawter v. Railway Co., 84 Mo. 679 and McGinnis v. Mo. Car & Foundry Co., 174 Mo. 335, 73 S. W. 586, and insofar as its doctrine is invoked in aid of Huntington v. Attrill, which, indeed, is to its fullest extent, and even extended, it can have no force in this jurisdiction. If the cases cited were more nearly in point we would consider it our duty to follow our own court, especially where we think its reasoning is sound, as we do.
After much painstaking labor, we have been unable to find any case in the books in this country or in England, sustaining the doctrine of the Marsh case, in the construction of a statute of this nature. The nearest in point is the ananymous case, Lofft’s Rep. 155, cited in the Marsh case, where it was held that in an action for a penalty by the party aggrieved by bailiffs in arrest extorting unjust fees, the party can compound without leave of court. But in this case, it will be observed that the action being for extorting unjust fees, was founded upon the primary right at common law, the thing sued for was not being pursued as a penalty, and the penal
From what has been said it is obvious that the fundamental error in the Marsh case is that it treats this statute, which is both highly penal and in derogation of the common law, creating a new cause of action or transmitting to parties a right to sue on á cause of action which had no existence at common law, as on the same plane with the statutes which award increased or enhanced damages in the nature of a penalty on a common law right and applies the principle pertinent to such statutes to this extraordinary penal statute in derogation of the common law, overlooking the principle that the statutes awarding enhanced or accumulative damages are regarded as remedial and in aid of the common law, on the theory that their only purpose is to engraft additional recovery in the nature of a penalty on a common-law right of redress for a common-law wrong, and are therefore to be taken as remedial and compensatory rather than penal, and thus confounds the principle applicable to such statutes with that pertinent to a case where independent of the common law, the thing is being pursued as a penalty.
For the error of the learned trial judge in peremptorily instructing the jury that in event the respondents recovered, the verdict would be for $4,500, the judgment will be reversed. But inasmuch as the petition states a cause of action under the third and fourth sections of the damage act, the cause will be remanded to be proceeded with by the circuit court thereunder. It is unnec
The conclusion herein announced being in conflict with that entertained by the Kansas City Court of Appeals and announced in Marsh v. Railway Co., 104 Mo. App. 577, 78 S. W. 284, the cause will be certified to the Supreme Court in obedience to the Constitutional mandate, for final determination.