193 S.W. 827 (Mo. 1917), Johnson v. Chicago, Milwaukee & St. Paul Railway Co.

Citation:193 S.W. 827, 270 Mo. 418
Opinion Judge:FARIS, J.
Attorney:J. Harold Olson and T. J. Madden for appellant. Frank Hagerman, E. E. Ball and Clyde Taylor for respondent.
Case Date:March 16, 1917
Court:Supreme Court of Missouri

Page 827

193 S.W. 827 (Mo. 1917)

270 Mo. 418




Supreme Court of Missouri, Second Division

March 16, 1917

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

Reversed and remanded (with directions).

J. Harold Olson and T. J. Madden for appellant.

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



This case comes to us by transfer from the Kansas City Court of Appeals, because it was strenuously urged by respondent that the interpretation of section 5425, Revised Statutes 1909, for which appellant contended to sustain her verdict nisi, rendered that section unconstitutional.

Upon an examination of the whole case the Kansas City Court of Appeals felt constrained, in a learned and ably reasoned opinion by Judge Trimble, in which all [270 Mo. 419] of that court concurred, to put upon said section the identical construction which was banned by the anathema of respondent. Therefore, in order that this court might determine whether the construction placed on said section does render it unconstitutional, the Court of Appeals sent the case to us.

The facts in the case, the view taken of the law and the precise nature of the constitutional question urged as arising from the view taken, are all carefully set forth and discussed in the opinion of the Kansas City Court of Appeals (Johnson v. Railroad, 174 Mo.App. 16), in which we concur. This opinion, so far as it is pertinent, is as follows:

"Plaintiff brought this suit under section 5425, Revised Statutes 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.'

[270 Mo. 420] "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 statutes, 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

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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, [270 Mo. 421] as the amount specified in the statute was absolutely fixed at $ 5000, no more...

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