174 Mo. App. 16 | Mo. Ct. App. | 1913
Plaintiff brought this suit under section 5425, Revised Statutes of Missouri 1909, to recover a penalty of $2000 for tbe death of her husband caused by the ¿lleged negligence of defendant’s servants whilst running one of its trains.
The answer was a general denial and a plea of contributory negligence, to which a reply was filed, and the trial began. Defendant objected to the introduction of any evidence for the reason that the petition did not state’a cause of action. The sole ground of this objection was that the statute on which the suit is based provides a certain penalty, but that penalty is not declared upon nor demanded in the petition, and, therefore, plaintiff has not brought her petition and case within the terms of the statute; in other words, since the petition did not declare upon the penalty provided in the statute, it stated no cause of action. This objection Was overruled, and the case proceeded to verdict and judgment in plaintiff’s favor for $2000. On motion for a new trial, however, the above point was again raised, and the trial court sustained defendant’s contention in regard thereto, and granted' a new trial
Prior to the amendment of 1905, the amount recoverable for a death coming within the terms of this statute was placed at the fixed and immovable sum of $5000. Plaintiff could then recover neither less nor more. The words of the statute as to the penalty were “shall forfeit and pay for every person or passenger so dying, the sum of five thousand dollars.” Under the section as it thus stood, prior to 1905, it was held that, as the amount specified in the statute was absolutely fixed at $5000, no more and no less, a suit could not be maintained which sought to recover less than that sum; that under such a statute, a plaintiff must declare for and seek to recover the precise or full measure of the penalty therein provided. [Casey v. St. Louis Transit Company, 116 Mo. App. 235, l .c. 260; same case, 205 Mo. 721, l. c. 723.] Since those decisions were rendered, however, the statute has been amended (Laws 1905, p. 135). That part of the section fixing the amount recoverable now reads, “shall forfeit and pay as a penalty, for every such person, employee or passenger so dying, the sum of not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury.” The
As the Supreme Court adopted the opinion of the St. Louis Court of Appeals in the Casey ease, the reasons underlying both of the above-named decisions are to be found in an examination of that opinion. '
The fundamental reason appearing therein why the plaintiff could not sue for less-than the fixed and precise sum named by the statute was that the statute gave said sum as a penalty; and as the statute was thus penal, it must be strictly construed and “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.” [Casey v. Transit Co., supra, l. c. 252.]
Now, it must be borne in mind that, as the. statute then stood, this penal feature inhered in and existed throughout the ivhole of the $5000 allowed. It necessarily must have done so since the amount was fixed at that precise sum, no more and no less, and if penal at'all was penal throughout. It is true the statute was held to be both remedial and penal, but its remediality, if any, and its penality existed in cmd pervaded the whole sum named, thus making the whole sum a penalty. In other words, as the amount named by the statute was one fixed and certain sum there was no room for saying that a part of it would be considered penal and the remainder remedial. Both the pe
But in the statute, as now amended, does the penal feature inhere throughout the entire sum from the minimum limit of $2000 to the maximum limit of $10,000? In answer to this question whether or not the entire amount from one limit to the other is penalty, or has in it the elements of penalty, it would seem that, if the language of the statute is accepted as it reads, then the element of penalty extends throughout the whole of the amount specified by those limits. It says, “shall forfeit and pay as a penalty the sum of not less than two thousand dollars, and not exceeding ten thousand dollars, in the discretion of the jury.” The word “forfeit” implies a penalty and the words “as a penalty” expressly say it is such. So that on the mere face of the statute it would seem that the entire amount allowable was intended as- a penalty. And in Young v. Railroad, 227 Mo. 307, the Supreme Court held that the whole amount allowed by the statute between the two limits was penal in character; and in Boyd v. Railroad, 236 Mo. 54, the holding is that it is both penal and remedial or compensatory, that is, that the penal feature exists along with the compensatory feature throughout the range fixed by the statute between the two limits. But in Boyd v. Railroad, decided March 28, 1913, and reported in 249 Mo. 110, 155 S. W. 13, l. c. 17, the Supreme Court expressly overrules the Young case in so far as it holds that the statute is penal throughout, and also expressly overrules the former decision in the Boyd cáse in the 236 Mo. 54, in so far as it holds that there is anything penal existing in the range permitted above $2000. And, in lieu of the doctrine announced by either the Young or the first Boyd case on this point, the Supreme Court announced the. rule that said section, as it now stands, is penal so farr as it fixes th.e amount of recovery at not less than $2000, but is remedial and
It is also apparent that, in this last Boyd case, there is a distinction between a case in which only the penalty is demanded and one in which both penalty and compensation are sought. On page 16 of the 155 S. W. Reporter the court say:
“Upon a full consideration of this case in Banc, we are convinced that it was the intention of the General Assembly by the amendment of 1905 to leavé the provisions of section 5425, supra, penal in their nature, so far as said section fixes the amount of recovery at not less than $2000, but where a plaintiff, as in this case, seeks to recover under said section a larger sum than $2000, the jury or court in preparing itself to exercise a wise and just discretion should receive evidence of the age, condition of health, and earning capacity of the party killed, and the consequent loss to the plaintiff thereby, together with the facts and circumstances attending the killing, for which damages are sought to be recovered. In other words, a recovery under section 5425, Revised Statutes 1909. is penal up to the sum of $2000, but the extent to which a plaintiff may recover, if at all, in excess of $2000 under that section, is remedial and compensatory.” That is to say, if a plaintiff sues for penalty only, no evidence as to age, health and capacity of the deceased is admissible, since it could not help in any way, as the penalty must be applied regardless of these con
It is argued that if the statute is thus construed so as to permit a plaintiff to sue for less than the maximum, then we are placing on .it a construction which will render it unconstitutional. With its constitutionality, of course, we have nothing to do. However, this claim that such a construction will render the statute unconstitutional is based on the view that the statute is penal, not only as to the $2000, but also as to everything in excess of $2000, and that to allow a plaintiff to sue for any amount less than $10,000, is unconstitutional in that it is permitting her to fix the penalty; that, in such case ,the penalty is fixed, not by the legislative power, but by the plaintiff in each particular case. [Citing Cigar Makers, etc. v. Goldberg, 61 Atl. 457.] Since the Supreme Court in the last Boyd case, supra, has said that the statute is penal as to the $2000 but is compensatory as to the excess, there is no basis upon which to rest the claim, that such construction would make the statute unconstitutional. But whether it is or is not thus rendered unconstitutional is a question for the Supreme Court to pass upon whenever its constitutionality is attacked. If the $2000 is all penalty, and all over that is merely compensation, then the legislative power has fixed the penalty at $2000, and plaintiff, by suing for $2000, is not fixing the penalty but is demanding what has already been fixed by the Legislature. The view that the stat
It is urged that the penalty is to be fixed “in the discretion of the jury” and that to allow plaintiff to sue for $2000 is to take away that discretion. This again assumes that the excess over $2000 is penal in its nature. But if it is not and only the $2000 is penal, then as to the penalty the jury has no discretion. If it believes that plaintiff was killed within the terms .of the statute then the penalty is fixed, and its discretion operates only upon the compensatory part of the recovery. Even though a plaintiff bring a suit asking for the maximum amount, yet, if no evidence is offered upon which the jury can exercise its discretion as to compensation, the amount allowed cannot exceed $2000, because, in that event there is nothing upon which a verdict for a greater amount can be based, “The discretion of the jury” has nothing upon which to operate. But as to the $2000, if the killing was within the terms of the statute, there is no discretion, the penalty must be given. If, now, a plaintiff, by a mere failure to offer evidence on the compensatory feature, can take from the jury the discretion to award a larger amount than $2000, what is there to prevent such plaintiff from drawing her petition and bringing her suit in such way as to limit her recovery to the penalty purely and thereby limit the jury to the precise sum of $2000? In either case the jury is limited #s to the amount of its verdict. And in both, if the jury believes the testimony tending to show that the death occurred under such circumstances as the statute requires, there is no discretion to be exercised but the jury must impose the pure penalty fixed by the stat
It is urged that plaintiff brought this suit for $2000 only in order to keep out of the Federal courts. But if, under the statute, only the $2000 is penalty, then she has a right to sue for that alone. And if she has a right to sue for it alone, her reasons for not also suing for compensation cannot be inquired into nor impugned. So far as that is concerned, as the penalty sued for is the lowest amount recoverable under the statute, she could in turn charge defendant with insisting that it be sued for the larger amount solely in order that the case could be taken to the Federal Court. In either case it is not a question of the motives of litigants, but of their rights under the law. The same is to be said in response to the objection that such a construction will enable a plaintiff to work a fraud upon the jurisdiction of the courts. There can be no fraud worked upon the jurisdiction of the courts by bringing a suit solely for the penalty, .if there is a clear line of demarcation between the penal and compensatory features of the statute. As the holding of the last decision in the Boyd case by the Supreme Court is that the statute in question is penal only a,s to the $2000 and compensatory as to anything in excess of that amount, the logical result of such holding is that plaintiff can sue for the penalty prescribed without asking for compensation. The case should,