Johnson v. Chicago, Milwaukee & St. Paul Railway Company

• Decision Date: 06 October 1913
• Citation: 160 S.W. 5,174 Mo.App. 16
• Parties: ELIZABETH JOHNSON, Appellant, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Respondent
• Court: Kansas Court of Appeals

160 S.W. 5

174 Mo.App. 16

ELIZABETH JOHNSON, Appellant, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

October 6, 1913

Appeal from Jackson Circuit Court.--Hon. Jas. E. Goodrich, Judge.

REVERSED AND REMANDED. TRANSFERRED TO SUPREME COURT.

J Harold Olson for appellant.

Frank Hagerman, E. E. Ball and Clyde Taylor for respondent.

OPINION

TRIMBLE, J.

Plaintiff brought this suit under section 5425, Revised Statutes of Missouri 1909, to recover a penalty of $ 2000 for the death of her husband caused by the alleged negligence of defendant's servants whilst running one of its trains.

The husband, while lying drunk upon the railroad track, was run over and killed by defendant's train as it was being backed out of the Union Depot in Kansas City where it had just delivered its passengers. A pilot, who had charge of the train, and who controlled it the same as an engineer was stationed on the rear end. In substance, the petition claimed that the track where deceased was killed was in a busy part of the city and was used as a pathway by pedestrians at all times of the day and night, which fact was known to defendant, and it was thereby the duty of defendant's servants, and especially the duty of this pilot, to keep a vigilant lookout for persons on the track to avoid injuring them; that the pilot, after he saw deceased on the track could have avoided killing him but negligently failed to do so. The petition closed with the following "That by reason of the premises plaintiff has been damaged and defendant should be made to forfeit and pay as a penalty the sum of two thousand dollars for which amount, with the costs of this action, she demands judgment."

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 for the reason that, the suit being on section 5425, it does not lie within the power of the plaintiff to bring suit for a sum or penalty less than that provided by the section, and, therefore, a suit for the sum of two thousand dollars is not maintainable. Plaintiff appealed from the order granting a new trial. And the sole question presented is, can a plaintiff, under the section in question, as it now stands, sue for less than the maximum provided by that section? Or, to state it a little more accurately, can the plaintiff under said section limit her demand to $ 2000, or must she sue for whatever amount may be assessed by the jury in its discretion within the limits provided by the statute, namely, a minimum of $ 2000 and a maximum of $ 10,000?

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 question now is, has this change in the statute rendered it permissible for the plaintiff to do in this case what she could not have done under the statute as it formerly stood? Unless this amendment has so changed the law that the reasons underlying the above named cases have ceased to exist, then said cases require with absolute certainty that the judgment of the lower court be affirmed. Have these reasons ceased to exist by virtue of the amendment? To answer this question we must first examine these reasons and then see whether or not the amendment has obviated or destroyed them.

As the Supreme Court adopted the opinion of the St. Louis Court of Appeals in the Casey case, 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 whole 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 penalty existed in and 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 penal and remedial features inhered in the amount throughout. Consequently whatever sum a plaintiff might seek to recover would have in it this penal feature. And if a plaintiff would seek to recover a penalty provided by the statute, he must ask for that penalty and no other. As said in Casey v. Transit Co., 116 Mo.App. 235, 252, 254, speaking of the rule of strict construction, as applied to the penal and not the remedial feature of the statute, "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 plaintiff's damage and the measure of their recovery, 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 the statute, the conclusion is that the penal sum therein fixed at $ 5000 means $ 5000. It does not mean $ 4500 no (any) more than it means $ 450 or forty-five dollars. 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 police power of the State for the purpose of preventing wrongs, so that conditions might arise where one offender would pay $ 5000 and another be permitted to pay $ 4500 and another a much less sum as might suit the convenience of the party putting the statute into operation by his suit." All of which means that as the whole of the $ 5000 is penal, that is, the penalty inheres in all of it, as shown by the language of the statute and the fact that no evidence is admissible on either side as to the amount of damages, then a plaintiff must seek to recover the penalty provided, and will not be allowed to whittle down the State's penalties to suit his or her convenience, thereby making different penalties in different suits for the same character of acts.

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...