178 Mo. App. 445 | Mo. Ct. App. | 1914
Lead Opinion
This suit was brought by the widow of James Johnson against the Springfield Traction Company under section 5425, R. S. 1909, for wrongfully and negligently killing her husband in a •collision of one of its street cars and a vehicle (or rather a kitchen safe in a vehicle) in which deceased was riding. A judgment for five thousand six hundred dollars is appealed from.
The facts surrounding the collision and bearing on the question of defendant’s negligence were at this term of court passed upon in an opinion prepared by Judge Sturgis in the case of Marth A. Johnson v. Springfield Traction Company, 161 S. W. 1193. A full statement of such facts is set forth in that opinion, the only difference being that in that case Mrs. Johnson sued for her personal injuries sustained in the same collision whereas in this she sues under the death statute for the loss of her husband. Many of the instructions involved in this case were considered in the other ease, and as that opinion, together with the files in the case, passed in review before the Supreme Court upon an application for a writ of certiorari, and the writ was denied, we are reassured that the questions touching the points in that case which are also in controversy here have been correctly decided and will therefore receive no further consideration in this opinion.
There are three questions raised by appellant that were not in the other case, and they are of such importance as to require very careful consideration. The first to be discussed relates to the contention that the plaintiff failed to show that the death of James Johnson was caused by the injury received in the col
The record discloses that the collision occurred on September 2, 1912, and that Johnson died on September 12, 1912. The uncontroverted evidence is that the deceased was unconscious, or possibly in a semi-unconscious condition when he was lifted from the street and taken to the hospital, and that he remained so for at least two days. ' Some four or five days after the collision, erysipelas developed, and on the tenth day meningitis manifested itself, and this was the day before he died. The injuries- were in the shoulder-blade and on the head, the injury on the head causing immediately the unconscious condition. Doctor Evans, who was the first physician on the ground, and who attended Johnson in the hospital, was first asked by an attorney for the plaintiff: “Now I will get you to state what in your opinion as a physician caused Mr. Johnson’s death?” This question was objected to by counsel for defendant and the objection sustained. He was then asked by plaintiff’s counsel the following question: “I will get you to state whether or not if a person receiving such an injury as Mr. Johnson received there and had an injury on his head and other injuries that you speak of, I will ask yon. whether or not that might produce death?” Counse] for defendant objected “because the gentleman doesn’t fully cover the case and because the witness is not qualified. He has testified he was there only part of the time and was not there at the time of death.” The objection being overruled, the witness answered: “A person of his age, it would.” Doctor Pulbright testified that he saw Mr. Johnson the day the injury occurred very soon after being taken to the hospital,
Objection was made to the form of questions put to Doctor Pulbright. The questions, answers, and objections bearing on this point are as follows: “Q. You have deaths from meningitis and erysipelas? A. Yes, sir. Q. In this case what was the cause of his death? A. The cause of his death was meningitis. Q. What did that come from, in your opinion? By Mr. Delaney: We object to that. It is stating a fact.” The objection was overruled, but the witness did not answer. Again quoting: “Q. What, in your opinion, caused meningitis in this case? By Mr. Delaney: We object to that. He can state the facts just as he found them there.” The objection was overruled, and the witness answered: “The injury, I would say, caused meningitis. Q. The injury he received? A. Yes, sir.”
It is insisted that the form of the questions was improper and contrary to the law in this State governing the introduction of expert witnesses and the form of hypothetical questions. The law on this subject has been recently expounded in the following cases: State v. Hyde, 234 Mo. 1. c. 251-253, 136 S. W. 316; Castanie v. United Rys. Co., 249 Mo. 192, 155 S. W. 38; Wood v. Railway Co., 181 Mo. 433; 81 S. W. 915; Longan v. Weltmer, 180 Mo. 322, 79 S. W. 655; Taylor v. Railroad, 185 Mo. 239, 84 S. W. 873 ; Torreyson v. United Rys. Co., 246 Mo. 696, 152 S. W. 32; Roscoe v. Railway Co., 202 Mo. 576, 101 S. W. 32; DeMaet v. Storage, P. and M. Co., 231 Mo. 615, 132 S. W. 732. In all these cases it will be noted that the issue or con
But it is unnecessary for us to decide that the questions put to Doctor Fulbright caused him to usurp the function of the jury, because, in order to save the point, defendant must have objected to the questions, directing the trial court’s particular attention to the form of the questions, and giving as a reason for the objection that the questions called upon the expert to give a conclusion of fact and thus invade the province of the jury. It will be noted that the objection made was general, and in no .way calculated to call the
The contention of appellant that negligence could not be laid at its door if its motorman merely made an error in judgment in thinking he could pass the wagon in safety is not well taken. . A similar contention was made in the case of Porter v. Hetherington, 172 Mo. App. 502, 158 S. W. 469, where the court held that such error of judgment was no answer to the negligence. In view of the fact that the defendant in this case, as in that, had a clear view of the person injured in sufficient time and space to have so controlled the car as to have averted the accident, and failed to do so, it is liable. There is no evidence in this case that deceased moved from a place of safety to a place of danger shortly before the collision. [See, also, Flack v. Railroad, 162 Mo. App. 650, 659, 145 S. W. 110.]
We will now discuss the instructions on the measure of damages. The defendant asked two instructions which erroneously confined the entire amount recoverable to compensatory damages. The court properly refused these instructions because a judgment under section 5425, Revised Statutes 1909, where lia
The history of the judicial construction of section 5425, Revised Statutes 1909, since it was amended in 1905 may be found by reading the cases of Young v. Railroad, 227 Mo. 307, 127 S. W. 19; Murphy v. Railroad, 228 Mo. 56, 128 S. W. 481; Boyd v. Railroad, 236 Mo. 54, 139 S. W. 561; and Boyd v. Railroad, 249 Mo. 110, 155 S. W. 13. The following language found in the opinion in the last Boyd case (249 Mo. 1. e. 126) induces us to believe that the penalty fixed by the statute cannot exceed two thousand dollars and that any amount recovered in excess of two thousand dollars is remedial and compensatory: “In other words, a recovery under section 5425, Revised Statutes 1909, is penal up to the sum of $2000, but the extent to which
Concurrence Opinion
SEPARATE CONCURRING OPINION.
This is the first case in which I have deemed section 5425, Revised Statutes of 1900, before us for construction with reference to its penalty feature.
The constitutional amendment of 1884, section 6, has made the last previous ruling of the Supreme Court on any question of law the controlling authority here. Our personal views upon any question of law before us upon which the Supreme Court has spoken can have no binding force. The Constitution has so decreed and I shall be so governed and shall, therefore, content myself with stating that I have read and considered, to the full extent of my ability,
Dissenting Opinion
DISSENTING OPINION.
I concur in the opinion of Judge Farrington in this case except as to the construction placed by him on the opinion in Boyd v. Railroad, 249 Mo. 110, 155 S. W. 13, as to the measm^e of damages under section 5425, Revised Statutes 1909. My views on this matter were expressed to some extent in Harshaw v. Railroad, 159 S. W. 1, to which I again refer. As pointed out in the majority opinion, this question has also been before both the other Courts of Appeals and those courts have the same difficulty we have in understanding the full scope of the Boyd case, supra. It is apparent on reading the decisions of the Courts of Appeals, Johnson v. Railroad, 160 S. W. 5, by the Kansas City Court, Lasater v. Railroad, 160 S. W. 818, by the St. Louis Court, and Harshaw v. Railroad, supra, by this court, that all the Courts of Appeals are somewhat reluctant to interpret the Boyd case, supra, as holding that section 5425 is penal only as to the minimum amount of $2000 and is purely and solely compensatory.as to any amount above that sum. We all agree that if the Supreme Court has or does so decide, then we have nothing to say as to the correctness of such decision and will follow it, but we are
The evidence in the present case is such that on account of the old age of plaintiff and her deceased husband, his physical condition and lack of earning capacity at the time of his death, there being no minor children thrown on plaintiff for support, etc., if a judgment above $2000 is purely compensatory to plaintiff, then there is no evidence in this record to support a verdict for any such excess and, regardless of any instructions given or refused, the verdict is excessive as to such excess and an order of remittitur should go.
In determining what the opinion in the Boyd case actually decides, the language used, as in all opinions, must be understood and interpreted in the light of the point actually before and being decided by the court. In that case the only question calling for a construction of section 5425 as to the measure of damages was the admissibility of evidence of a compensatory nature, the age, earning capacity, etc., of deceased, and the giving of an instruction telling the jury to take these matters, into consideration in determining the amount of the verdict within the limits fixed by the statute. The court was combating, and decided adversely, the contention that the statute since the amendment is purely and solely penal throughout the whole range of damages now allowed, just as it was purely penal before the amendment, when $5000, no more or no less, could then be recovered. That contention is disposed of thus: “It might be urged that they are to consider only circumstances attending the negligence, unskillfulness or criminal intent of the party or corporation causing the death for which recovery is sought, but it would be much more reasonable to suppose it was the legislative intent that, in exercising its discretion as to the amount for which a verdict in excess of $2000
The courts have steadily ruled that this statute prior to being amended in 1905 gave a fixed penalty and that no evidence of a compensatory character or tending to show the pecuniary loss of plaintiff was admissible. For the same reason evidence relating to the degree of negligence or showing wantonness or criminal intent was not admissible on the measure of damages. When, by the amendment, the jury was given a discretion to fix, within the designated limits, the amount which the offending carrier “shall forfeit and pay as a penalty” for each person killed, the Supreme Court properly said in the Boyd case, supra, that the jury should receive as a basis for the exercise of an intelligent discretion “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 hilling, for which damages are sought to be recovered.” If there is no penalty except the fixed minimum of $2000 and the penal feature has nothing to do with the amount awarded above such minimum and the same is purely compensatory, then why, in determining the amount to be awarded above that sum, should the jury consider the “facts and circumstances attending the killing”? If the amount above $2000 is purely compensatory and measured by the pecuniary .loss to the party suing, then it matters not so far as the amount to be recovered is concerned, just as it did not matter under the old statute, whether “the man was killed through mere negligence, unaccompanied by any wantonness or criminal intent” or the reverse.
If the amount above the fixed penalty of $2000 is purely and solely compensatory, it is evident that
It may well be asked also whether a plaintiff suing for more than the $2000 penalty under section 5425 is to be denied the right given, even under sections 5426-7, to recover exemplary damages in cases where wantonness, criminal intent or recklessness is shown. [Barth v. Kansas City El. Ry. Co., 142 Mo. 535, 558, 44 S. W. 778.]
I find that in the Boyd case, supra, an instruction was given, much like the one given in this case on the measure of damages, allowing the jury to award “a sum not less than $2000 nor more than $10,000, in the discretion of the jury, and in determining the amount you will allow her you may take into consideration the pecuniary loss occasioned to the plaintiff by the death of her husband and may also take into consideration the facts constituting negligence on the part of defendant causing the death.” This instruction was approved in allowing the jury, as a basis of exercising their discretion as to the amount of damages to be allowed between $2000 and $10,000, to consider the pecuniary loss, as the statute is not wholly penal above the minimum; and it was not condemned as allowing a consideration of the facts constituting negligence, i. e., the degree of defendant’s culpability, as the statute is not purely compensatory as to the amount within such limits.
I find also that the Boyd case, supra, was decided almost simultaneously with Harding v. Railroad, 248 Mo. 663, 154 S. W. 711, which was an action, under section 5425 by the wife for the death of her husband. The Supreme Court approved a peremptory instruction
It is pointed out by the Kansas City Court of Appeals in the Johnson case, supra, that the word “forfeit,” used in section 5425, implies a penalty and that the statute says “forfeit and pay as a penalty,” not $2000, but any sum not less than $2000 nor more than $10,000. The only word in the statute which puts into it the compensatory feature is “discretion,” which, as said in the Boyd case, implies the right to ‘ ‘ acquire a full knowledge of all the facts upon which the discretion must operate.” This lets in the facts, on the measure of damages, showing the pecuniary loss of the plaintiff, but it certainly does not shut out the facts which show “whether the conduct of defendant, which caused the death, arose from mere inattention or was willful, wanton, or reckless,” as quoted from Young v. Railroad, 227 Mo. 307, 127 S. W. 19. It is true that the Young case and the first Boyd case, 236 Mo. 54, 139 S. W. 561, were overruled in the last Boyd case, supra, bnt only so far as inconsistent with that case, which, as I understand it, was only to the extent of it being error to hold that the amount to be recovered was purely penal throughout and did not permit evidence of a compensatory nature.
In my opinion this case should be affirmed unconditionally and, believing that it is in conflict with Boyd v. Railroad, supra, and Harding v. Railroad, supra, I ask that the same be certified to the Supreme Court, unless plaintiff sees fit to voluntarily remit the amount in excess of $2000.