Marsh v. Kansas City Southern Ry. Co.

• Decision Date: 04 January 1904
• Court: Missouri Court of Appeals
• Parties: MARSH v. KANSAS CITY SOUTHERN RY. CO.<SMALL><SUP>*</SUP></SMALL>

78 S.W. 284

104 Mo. App. 577

MARSH v. KANSAS CITY SOUTHERN RY. CO.^*

Court of Appeals at Kansas City, Missouri.

January 4, 1904.

RAILROADS—CROSSING ACCIDENT—AMOUNT OF RECOVERY—APPELLATE JURISDICTION —CONTRIBUTORY NEGLIGENCE.

1. Rev. St. 1899, § 2864, providing that in case of death from negligent running of a train the railroad company shall forfeit and pay for every person so dying $5,000, which may be sued for and recovered by certain relatives, is not strictly a penal statute; so that suit may be for less than $5,000.

2. Though recovery in case of death from negligent running of a train may, under Rev. St. 1899 be $5,000, yet, only $4,500 having been sued for and recovered, $4,500 is the amount in dispute, as regards appellate jurisdiction.

3. Recovery for death of a person killed by a train negligently run is not defeated by negligence of the driver of the wagon in which he was riding at the invitation of the driver, he not having known of the driver's negligence.

Appeal from Circuit Court, Vernon County; H. C. Timmonds, Judge.

Action by Grace E. Marsh against the Kansas City Southern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Lathrop, Morrow, Fox & Moore, Cyrus Crane, and O. H. Hoss, for appellant. J. I. Shepherd and Scott & Bowker, for respondent.

ELLISON, J.

Plaintiff is the widow of G. W. Marsh, who was killed by one of defendant's trains in the village of Hume. She recovered judgment for $4,500, and defendant appealed to this court.

The deceased, with Willis Harrold and two others, all in Harrold's wagon, had driven into the town to do some shopping. In returning Harrold and one of the others were on the front seat, Harrold driving, while the deceased and the other man were sitting in the rear on the bottom of the wagon bed. The evidence tended to show that defendant's road runs from north to south through the town, and that in approaching the track along the street from the direction these parties were traveling neither the track to the south nor trains thereon could be seen, on account of buildings and other obstructions, at but one place between the business portion of the town and a point between 6 and 20 feet from the track. That point was two blocks away, and then the view was of only a small part of the track. The street along which they drove was smooth, so that the wagon did not make sufficient noise to prevent them hearing any signal which an approaching train might make. From the point where they had a view of the track to the south, they drove slowly down to within a few feet of the track where they intended to stop and again look for a train. But just as they arrived at that place a fast moving train came from behind the buildings, which frightened the horses so that they leaped forward across the track, throwing the deceased out, where he was immediately struck and killed by the engine, the team and other occupants of the wagon escaping.

1. An important point is raised by the defendant as to the jurisdiction of this court to entertain the appeal. The point is based on the statute (section 2864, Rev. St. 1899) fixing the sum of $5,000 as the liability which a defendant must forfeit and pay in a case of this kind; that that being the fixed sum in such case, and that being a sum in excess of our jurisdiction, the appellate jurisdiction is with the Supreme Court. As has been stated, the amount sued for and recovered was $4,500, and the trial court instructed the jury that, if they found for the plaintiff, they must find that sum. The same point was made by motion in this court to transfer to the Supreme Court, and, with a view of having the question finally determined, we sustained that motion. When the case was received in the Supreme Court plaintiff filed her motion to transfer back to this court on the ground that this, and not that, court had jurisdiction. That motion was sustained, and the case returned to us. Unfortunately, that court did not express its views in an opinion, but we must accept its action on plaintiff's motion as a determination that it had no jurisdiction of the case. Indeed, it is clear that that court could not have determined otherwise. That court has jurisdiction of money demands only "where the amount in dispute, exclusive of costs, exceeds the sum" of $4,500. In sums of $4,500 or less the jurisdiction is with this court. The "amount in dispute" in this case is $4,500, for that is the sum plaintiff asserts she has been damaged, and which she claims defendant is liable for, and for which she asks judgment; and that is the sum for which defendant denies a liability. Plainly, the only "dispute" between the parties as to amount is over the sum of $4,500. Defendant contends that, if plaintiff has any right to a judgment, it can only be for the stated sum of $5,000, named in the statute, and that, therefore, the amount in dispute must be $5,000. But this contention involves the remarkable necessity of forcing plaintiff into a "dispute" which she specially disclaims. In our view, the point which defendant seeks to make has nothing to do with the question of jurisdiction. The point simply involves the right of plaintiff to recover at all on a statute naming a fixed sum as the amount to which she is entitled, when she asks a recovery for a less sum; that is, can a plaintiff seeking a judgment under a statute which creates the cause of action and names a fixed sum as the liability, ask for and recover a less sum? Defendant claims that the sum fixed is a penalty, and that in suits on penal statutes the petition must be based on the statute as it reads, and that the recovery must either be for the sum fixed (no more, no less) or not at all. In civil actions for what is known as strictly a penalty, and based on a strictly penal statute, that is the rule. Duffy v. Averitt, 27 N. C. 455; Dowd v. Seawell, 14 N. C. 185. In the case last cited it was held that the precise penalty must be demanded. The court state in the decision in Cunningham v. Bennett, 1 Geo. 1 C. B., "that a penal action could not be for less than the penalty given by the statute; and, though the plaintiff had a verdict, judgment was arrested. I conclude, therefore, that wherever a 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." Such penalties are those which are forfeited to the state in whole or in part, and are collected in the name of the state, or an informer authorized by the state. But the statute on which this action is based is not strictly a penal statute. It is undoubtedly remedial and compensatory, as well as penal. It subserves a double purpose: "First, compensation and, second, as a penalty to protect the public against repetition of like wrongs." King v. Ry. Co., 98 Mo. 230, 11 S. W. 563; Philpott v. Ry. Co., 85 Mo. 164. And when it is not strictly a penal statute it is not absolutely necessary that the individual who falls under the relief of its provisions should demand the whole sum allowed him. He must, it is true, found his petition on the statute, but he is not compelled to demand all the statute enables him to seek if he is willing to receive less. It is true that it was remarked in Proctor v. Ry. Co., 64 Mo. 112, 122, that the damages to be recovered under the statute in question were $5,000, "no more and no less." But manifestly the court, in using that language, was merely meaning to say that the sum recoverable was a fixed and definite sum, leaving the jury no discretion as to amount when it was demanded —a discretion the jury would have were the action under another statute. There was no intention to say, and it was not said, that the party entitled to that sum could not sue for nor accept less. Defendant also cites us to Rafferty v. Ry. Co., 15 Mo. App. 559, but that case in no way involves the question presented in the one at bar. That case involved the return of a verdict for a less sum than that demanded, and which the court stated should be found if there was a finding for plaintiff at all. That verdict was unasked, and was at first repudiated by the plaintiff. The question whether a plaintiff could sue for and accept less than the sum fixed by the statute was not mentioned, and perhaps was not thought of, in the consideration of the case.

That this is not strictly a penal statute is made manifest by some observations on what a penal statute is understood to be, as well as the consequences which would flow from such construction. Penal statutes "are those imposing punishment for an offense committed against the state, and which, by the English and American constitutions, the executive of the state has the power to pardon." And the suit for such penalty, whether civil or criminal, must be in favor of and for the state. Huntington v. Atterill, 146 U. S. 657, 13 Sup. Ct. 224, 36 L. Ed. 1123. If the action was for a penalty in the strict sense, it would be local, and could not be maintained in the courts of any other state; for it is...