Casey v. St. Louis Transit Company
| Decision Date | 14 November 1905 |
| Parties | CASEY AND CASEY, Respondents, v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.
REVERSED AND REMANDED AND CERTIFIED TO THE SUPREME COURT.
STATEMENT.--Plaintiffs sued to recover $ 4,500 damages for the death of their unmarried minor child, Daniel Casey, who was killed by one of the defendant's street cars. The casualty occurred April 17, 1903, after nightfall; the scene, at the intersection of Arsenal street and Broadway, a few steps west of Lyon Park in the city of St. Louis. Daniel Casey, who was killed, was a boy nearly nine years of age and of fair intelligence. He and some other boys had been playing north of Arsenal street but had gone down to where the accident occurred, either following a hoodlum wagon or to visit the park. Some boys including the deceased, were standing on the east side of Broadway and immediately outside of the park as the car which did the mischief, came from the south. For some reason Daniel Casey and his brother, a lad of fourteen years, started across Broadway as the car approached, without noticing it. The testimony goes to show that Daniel Casey's attention was fixed on a south-bound car on the west track and that while gazing at that car, he stepped on the east track and stood there about ten seconds waiting for the south-bound car to pass, and while in that position was run over by the northbound car and injured so that he died. One witness accounted for the deceased waiting on the track by saying, in effect, that the two cars were coming from opposite directions and he did not know what to do. The deceased's brother John had crossed the track immediately in front of him and his testimony is that neither of them had noticed the car going northward along Broadway south of Arsenal street.
There are several specifications of negligence in the petition, among which are the alleged negligence of defendant's motorman in failing to sound the gong; the alleged negligence of the motorman in failing to keep a vigilant watch, and the alleged negligence of the motorman in operating the car at an excessive rate of speed. As will be seen, all of these specifications relate to the negligence of defendant's servants, and bring so much of the case within the purview of section 2864, R. S. 1899 authorizing a recovery in the fixed sum of $ 5,000 for a wrongful death. There are also other specifications of negligence contained in the petition, to-wit, the absence of signal lights and the absence of a fender on the car, which might bring the case within the purview of section 2865, R. S. 1899, authorizing a recovery in a sum not to exceed $ 5,000, but those two specifications were not submitted to the jury. The specifications of negligence which were referred by the court to the jury and on which a recovery was had, are, in the first instruction, the alleged negligence of the motorman in failing to sound the gong; in the second instruction, the alleged negligence of the motorman in failing to keep a vigilant watch, and in the fourth instruction, the alleged negligence of the motorman in operating the car at an excessive rate of speed. These specifications relating to the negligence of defendant's servants in operating the car, bring the case properly within the purview of section 2864, R. S. 1899, commonly known as the second section of the damage act, which section provides that in case of death as therein specified, the proper parties specified therein may sue for and recover, and the defendant shall forfeit and pay for every person or passenger so dying, the sum of $ 5,000. The court below treated the case as coming under the purview of that section, and acting upon the theory that the plaintiffs could sue for all of the penalty named, to-wit, $ 5,000, or any lesser amount, as they saw fit, instructed the jury that, in the event that the finding should be for the plaintiff, the verdict should be for $ 4,500, the full amount sued for. Respondents treat the case in this court as coming within the purview of that section and insist that they are not compelled to sue for the $ 5,000 mentioned in the statute, but that they could sue for whatever amount they saw fit, not exceeding the sum of $ 5,000, and that the court acted properly in so directing the jury.
The principal point made in this court for a reversal of the judgment is that the action is predicated on the statute awarding a penalty of $ 5,000 to parents of children who are killed by a party's negligence, that exact sum must have been demanded by the plaintiffs in order to state a cause of action under the statute, and that inasmuch as the statute provides that for every such death, the defendant shall forfeit and pay $ 5,000, and that the petition in this cause seeks to recover $ 4,500 only, that there is no cause of action stated in the petition, and therefore the judgment must be reversed. In this connection, too, it is urged by defendant that, inasmuch as the jurisdiction of this court extends only to money demands of $ 4,500, exclusive of interest and costs that a suit properly brought under that section for the penalty should be for the full penal sum therein provided, so that, in event of plaintiff's recovery, an appeal might be properly had to the Supreme Court. It is urged that the amount, $ 4,500, demanded in this case, is an attempt to oust the Supreme Court of its appellate jurisdiction of this cause, which is not permissible; that at any rate, the court erred in peremptorily directing the jury that in event the verdict was for plaintiffs, the measure of recovery was $ 4,500, no more and no less.
It is argued that under the theory on which the case was tried, plaintiffs and not the statute, fixed the penal sum in which the defendant is to be mulcted for its wrongful act. The appellant insists that the sum so fixed by the statute is a penalty; that the statute itself is penal; that such statutes are to be strictly construed, and to state a cause of action thereunder the pleader must bring himself strictly within the terms of the statute, and among other things, the precise sum fixed therein must be sued for and recovered, or none at all. And from this, it will of course necessarily follow that unless the precise sum of the penalty is sued for, the case would come properly within the provisions of section 2865 and 2866, the third and fourth sections of the damage act, and the defendant would be permitted to be heard upon the question of the measure of damages and the court should instruct the jury that in event of plaintiffs' recovery, such an amount should be awarded, not exceeding $ 5,000, as might be fair and just.
Replying to this, respondents cite us to the case of Marsh v. Kansas City & Southern Ry. Co., 104 Mo.App. 577, by the Kansas City Court of Appeals, wherein this identical question was decided adversely to appellant's contention here. That case, on motion of appellant, was transferred to the Supreme Court by the Kansas City Court of Appeals, notwithstanding the amount involved was only $ 4,500, in order to have the question of jurisdiction settled, as the appellant therein contented that the Supreme Court had jurisdiction thereof for the reason that the full penalty of $ 5,000 was recoverable, if anything. The Supreme Court remanded the cause to the Kansas City Court of Appeals without an opinion, on the ground, we presume, that as only $ 4,500 was involved in the controversy, the jurisdiction of the Supreme Court did not attach thereto. This remand of course, disposed of the question of jurisdiction but did not dispose of the question of whether a good cause of action can be stated on the particular statute involved, section 2864, R. S. 1899, without demanding the statutory penalty. After the cause was thus returned, the Kansas City Court of Appeals proceeded with it to a decision and in the course of its opinion, discussed the question of whether the statute involved was penal in the sense that an action on it must be for the entire penalty. The ruling was that the statute was compensatory as well as penal. The familiar doctrine was announced that it was remedial or compensatory in awarding compensation to the injured party for the wrongful death of her relative, and penal in operating as a deterrent against similar torts. It was held that a statute is only penal in such sense as to bring a civil action on it within the rule that the full penalty must be asked, when the statute imposes punishment for an offense committed against the State; that is, a penalty which the Executive of the State has power to pardon and which must be proceeded for in the name of the State and that therefore it was permissible for the parties suing, to sue for and recover $ 4,500 in said suit instead of the penal sum of $ 5,000.
At the last term, this court followed the Kansas City Court of Appeals in that holding and affirmed the judgment in the present case and afterwards upon motion, set that judgment aside and ordered a rehearing.
The point for decision clearly stated is, as will be seen, can the plaintiffs, seeking a judgment on the statute which creates or transmits to them a cause of action, which they had not at common law and provides that the defendant shall forfeit and pay a fixed penal sum of $ 5,000, sue for and recover on said statute a less amount? Upon reconsideration, this court has arrived at a different conclusion from that first entertained and that conclusion and the reasons therefor will be expressed in the opinion.
REVERSED AND REMANDED AND CERTIFIED TO THE SUPREME COURT.
Geo. W Easley with Boyle, Priest & Lehmann for appellant.
The court erred in overruling defendant's...
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