Colvin v. Gideon & N. I. R. Co.

• Decision Date: 06 February 1918
• Docket Number: No. 2140.,2140.
• Parties: COLVIN v. GIDEON & N. I. R. CO.
• Court: Missouri Court of Appeals

200 S.W. 715

COLVIN v. GIDEON & N. I. R. CO.

No. 2140.

Springfield Court of Appeals. Missouri.

February 6, 1918.

Appeal from Circuit Court, Pemiscot County; Sterling McCarty, Judge.

Suit by Joe Colvin, administrator of the estate of Tom Colvin, deceased, against the Gideon & North Island Railroad Company, a corporation. Judgment for plaintiff, and defendant appeals. Reversed.

Thomas Gallivan, of New Madrid, and Jas. A. Finch, of Fornfelt, for appellant. Ward & Reeves, of Caruthersville, for respondent.

STURGIS, P. J.

This suit is brought by the administrator of Tom Colvin, deceased, to recover damages for his death under section 5425, R. S. 1909, being the wrongful death statute applicable to railroads and similar common carriers. The petition alleges that the death of Tom Colvin was caused by the negligence of defendant's servants in operating one of its trains, and states a cause of action under what is known as the humanitarian rule, in that the persons operating the train saw, or by due care could have seen, the deceased on its track in a place of peril and oblivious to his danger in time to have stopped the train and avoided killing him, but negligently failed to do so. The case went to the jury on this theory with an instruction that, if the jury found for the plaintiff, to assess the damages at a sum not less than $2,000 nor more than $10,000. The jury returned a verdict for $2,500. On the court's threat to sustain the motion for new trial the plaintiff remitted $500 of the verdict, the motion was then overruled, judgment entered for $2,000, and defendant appeals.

The sole error assigned in this court is that the petition fails to state a cause of action in that there is no allegation that the deceased, Tom Colvin, left any person surviving him capable of inheriting or in the language of the statute to whom "the amount recovered shall be distributed according to the law of descents." The statute in question authorizes a suit to be maintained by the administrator or executor if there be no husband or wife, minor child or children, or if the deceased be an unmarried minor, and there be no father or mother. The petition alleges that the deceased, Tom Colvin "died intestate, single, and without issue," which we think is sufficient to exclude the persons named as having a prior right to sue, but nothing is alleged as to there being any one surviving capable of taking under the statute of descents. The defendant did not demur to the petition, but objected and excepted to the introduction of any evidence on the ground that the petition failed to state facts sufficient to constitute a cause of action, demurred to the evidence, and assigned the same ground in his motion for new trial and in arrest of judgment.

A similar question was presented to this court in Johnson v. Dixie Mining Co., 171 Mo. App. 134, 156 S. W. 33, in a case arising, however, under the next section of the damage act (sections 5426, 5427, R. S. 1909), where exactly the same provision is made as to who may maintain the action. A majority of this court held that for an administrator to maintain a suit under that section it is necessary, in order to state the cause of action, that the petition state for whose benefit the suit is being maintained, or, in other words, allege that the deceased left surviving him persons suffering a pecuniary loss by reason of the death. This conclusion was arrived at chiefly because the damages to be recovered under said section 5426 are purely compensatory, and are measured by the pecuniary loss to the persons for whose benefit the suit is brought; that the administrator or executor does not sue as such or for the benefit of the decedent's estate, but as trustee for those suffering pecuniary loss by the death. This case was transferred to the Supreme Court, and in the meantime the same question, also in a case arising under sections 5426 and 5427 was decided by the St. Louis Court of Appeals, and the same conclusion reached (Troll v. Gaslight Co., 182 Mo. App. 600, 169 S. W. 337); so that when the Johnson Case reached the Supreme Court it was affirmed, and the Troll Case approved (Johnson v. Dixie Mining Co., 187 S. W. 1). The Supreme Court correctly interpreted our decision as follows:

"It will be observed that the real question is whether since the amendment of our damage act an administrator sues for the benefit of the estate or for the benefit of beneficiaries other than the estate of the deceased. The majority opinion holds that under our present damage act the administrator does not sue for the benefit of the estate, but that he sues for surviving beneficiaries, and the petition should name such beneficiaries and plead such facts as may be necessary to show the damages suffered by them through the death of the party."

There is a marked difference, however, as to the measure of damages between cases founded on section 5425, under which the present case is prosecuted, and sections 5426 and 5427, on which the cases above mentioned were founded, in that the damages to be recovered under the latter are purely compensatory, while under section 5425 such damages are purely penal for the amount of $2,000, and compensatory in excess of that amount. Boyd v. Railroad, 249 Mo. 110, 155 S. W. 13, Ann. Cas. 1914D, 37; Johnson v. Railroad, 270 Mo. 418, 193 S. W. 827. This last case holds that under section 5425 the amount of $2,000 is purely a penalty, and is the whole penalty provided for. In the present case the plaintiff, while suing for both the penal and compensatory damages allowed by section 5425, remitted all he recovered above the $2,000 penalty, and is now in the same position he would be had he sued for the penalty only, as was done in the case of Johnson v. Railroad, supra. The question is therefore before us to decide whether an administrator can sue and recover the penalty of $2,000 provided by section 5425 without alleging in the petition, as a necessary fact to constitute the cause of action, that the deceased left surviving him persons capable of taking under the statute of descents.

It is evident that in such suit the fact that the damages are compensatory and that the amount to be recovered is measured by the pecuniary loss suffered by those for whose benefit the suit is brought, the fact dwelt upon in Johnson v. Mining Co., supra, in construing sections 5426, 5427, is wholly immaterial in a suit for the penalty under section 5425. Here the amount recovered is a pure penalty, having nothing to do with the pecuniary loss of any one, and it cannot be said that the petition must "plead such facts as may be necessary to show the damages suffered by them [the named beneficiaries] through the death of the party," as is said by the Supreme Court in affirming the Dixie Mining Co. Case, supra. It is said in Johnson v. Railroad, 270 Mo. 418, 422, 193 S. W. 827, quoting from the Kansas City Court of Appeals in the same case, which in turn quotes from Casey v. Transit Co., 116 Mo. App. 235, 252, 254, 91 S. W. 419; affirmed in the Supreme Court, 205 Mo. 721, 103 S. W. 1146:

"No evidence is to be heard and no day in court to be had on the amount of plaintiff's damages and the measure of the 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."

And, as here further said, the plaintiff, when suing for the penalty, is merely "the party putting the statute into operation." When a suit therefore is under section 5426 where the damages are compensatory, it becomes most material to know who the person is who is claiming to have suffered pecuniary loss by the wrongful death; for on that hinges the amount, if not the right, of recovery. Where an administrator sues for the penalty of $2,000 under section 5425, it is only necessary that there be some person capable of inheriting from the deceased. The proverbial "forty-second cousin" who never would otherwise have heard of the deceased will answer for a beneficiary as well as a dependent minor brother or sister. Neither the earning capacity of the deceased, on the one hand, nor the probable pecuniary profit to the beneficiary arising from the continued life of the deceased, on the other, is of the slightest importance, for the amount to be recovered is a fixed penalty. Of course, if the suit is for more than the $2,000 penalty, then the compensatory feature enters the same as under section 5426, and the same rule of pleading would prevail.

It is true, however, that there must be some one, however remote, capable of inheriting from the deceased to whom the penalty of $2,000 will go under the statute of descents. But, when one reads our...