Grier v. Kansas City, Clay County & St. Joseph Railway Co.

• Decision Date: 05 March 1921
• Parties: GEORGE S. GRIER, Administrator of Estate of Ralph W. Grier, v. KANSAS CITY, CLAY COUNTY & ST. JOSEPH RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

228 S.W. 454

286 Mo. 523

GEORGE S. GRIER, Administrator of Estate of Ralph W. Grier, v. KANSAS CITY, CLAY COUNTY & ST. JOSEPH RAILWAY COMPANY, Appellant

Supreme Court of Missouri

March 5, 1921

Appeal from Buchanan Circuit Court. -- Hon. Thos. B. Allen, Judge.

Affirmed.

John E Dolman for appellant.

(1) The court erred in refusing to instruct the jury as requested by defendant in its instructions A, B and D, that plaintiff could not recover a sum exceeding two thousand dollars. Boyd v. Railroad, 249 Mo. 110; Johnson v Railroad, 270 Mo. 418; State ex rel. v Ellison, 213 S.W. 459; Cooley v. Dunham, 195 S.W. 1058. (2) The court erred in refusing to instruct the jury as requested by defendant in its instructions E, F, and 4. State ex rel. Coal Co. v. Ellison, 270 Mo. 645; State ex rel. Dunham v. Ellison, 213 S.W. 459; Secs. 1796, 1797, R. S. 1909; Laws 1895, p. 168; Boyd v. Railroad, 236 Mo. 94; Parsons v. Railroad, 94 Mo. 299; Smith v. Railroad, 92 Mo. 359; Morgan v. Durfee, 69 Mo. 478; Barth v. Railroad, 142 Mo. 558; Railroad Co. v. Arms, 91 U.S. 495. (3) In refusing the instructions requested by the defendant and in giving the instructions requested by plaintiff, the court placed an erroneous construction upon Article I of Chapter 38, entitled "Damages," and more particularly upon Section 5425 of that article, Revised Statutes 1909, as amended. Sutherland on Statutory Construction, sec. 333; Stroutman v. Railroad, 211 Mo. 255; McKay v. Minner, 154 Mo. 613; Broadwater v. Railroad, 212 Mo. 445. (a) "Blackstone says that in amending laws the old law should be first considered. Second, the mischief which the old law failed to prevent, and third the remedy necessary to make the old law complete and effective." Boyd v. Railroad, 249 Mo. 122; 36 Cyc. 1164-1165. (b) "When a statute has been construed by the highest court having jurisdiction to pass on it, such construction is as much a part of the statute as if plainly written into it originally and every statute is to be construed with reference to the general system of laws of which it forms a part," and "In the construction of a particular statute or in the interpretation of any of its provisions all acts relating to the same subject or having the same general purpose should be read in connection with it as together constituting one law." 36 Cyc. 1144, 1147. (c) The old law of 1855 providing for the recovery of a gross sum of $ 5000 was construed by this court to be both penal and compensatory. Coover v. Moore, 31 Mo. 574; Fillmore v. Railway, 85 Mo. 168; King v. Railroad, 98 Mo. 235; Hennessy v. Brewing Co., 145 Mo. 112; Matlock v. Railroad, 198 Mo. 499; Gilkerson v. Railroad, 222 Mo. 202. (d) The amendment of 1905 was passed for three reasons: First, to create a right of action in the survivor or administrator of a servant whose death was caused by the negligence of a fellow-servant. Stroutman v. Railroad, 211 Mo. 255; Broadwater v. Railroad, 212 Mo. 445. Second, to correct the injustice of the old law in respect to giving the same amount of damages for the loss of life which was wholly worthless, as it gave to the loss of a life which was of great value to the survivors of the person killed. Boyd v. Railroad, 236 Mo. 88; Boyd v. Railroad, 249 Mo. 123. Third, to permit an administrator to sue for the benefit of the descendants of the deceased not otherwise expressly named in the statute. Sec. 5425, R. S. 1909; Laws 1905, p. 135. (4) "The test whether a law is penal in the strict and primary sense is whether the wrong sought to be redressed is a wrong to the public or a wrong to the individual." Huntington v. Attrill, 146 U.S. 689, 36 L.Ed. 1123; O'Sullivan v. Felix, 233 U.S. 325; Westerman v. Dispatch Ptg. Co., 233 F. 614; Langdon v. Penn. Ry. Co., 194 F. 495; Atlanta v. Chattanooga, 127 F. 23; Brady v. Daly, 175 U.S. 161, 44 L.Ed. 109; City of Hudson v. Granger, 52 N.Y.S. 9; Gilkerson v. Railroad, 222 Mo. 202; Mo. Pac. Ry. v. Humes, 115 U.S. 523; Carroll v. Railway, 88 Mo. 239. (a) The words "forfeiture" and "penalty" are synonymous terms. 3 Words and Phrases (2 Ser.), 948. (b) So that adding the word "penalty" in the amendment of 1905 added nothing to the meaning or effect of the section under consideration. Young v. Railroad, 227 Mo. 307; Boyd v. Railroad, 249 Mo. 122; Westerman v. Dispatch Ptg. Co., 233 F. 614. (5) The old statute providing for the recovery of the gross sum of $ 5,000 for negligently causing the death of another, was held constitutional for the same reasons and upon the same grounds, that the statute providing for double damages against a railroad for a failure to fence its track, viz., for neglect in the performance of a duty owing the public. Carroll v. Mo. Pac. Ry., 88 Mo. 246; Humes v. Railroad, 82 Mo. 221, 115 U.S. 512. (a) "It is upon that theory the constitutionality of that section is maintained, otherwise it would be open to the objection that it authorized the taking of private property for private use and the taking of property without due process of law contrary to Sections 20 and 30 of Article 2 of the Constitution of 1875." Gilkerson v. Railroad, 222 Mo. 202. (b) To hold this statute, since the amendments of 1905 and 1911 to be strictly penal, having no regard for pecuniary loss, but simply fixing a punishment to be assessed by the jury within certain limits, according to the culpability of the act causing the death, would violate the Federal and State Constitutions prohibiting the taking of private property for private use and the taking of property without due process of law, at least so far as it permits a punishment to be inflicted upon the railway company for the death of a servant, caused by the negligence of a fellow-servant. Black on Const. Law (2 Ed.), p. 351; Ives v. Railway, 201 N.Y. 271, 34 L. R. A. (N. S.) 162. (c) In order to uphold the constitutionality of this statute in the case at bar, it must be construed as being both penal and compensatory, since the infliction of a penalty of $ 10,000 and more than $ 2,000 in this case as a punishment for the ordinary neglect of the motorman, in miscalculating the distance his car was from the curve on account of the density of the fog and which on account of its construction, he knew he should approach at a slower rate of speed, would be out of all proportion to the public wrong and amount to to the taking of the defendant's property, without due process of law. Mo. Pac. Rp. v. Tucker, 230 U.S. 340, 57 L.Ed. 1507; Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 53 L.Ed. 417; Coffee v. Harlan, 204 U.S. 659. (d) Where the penalty prescribed is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable, the due process clause of the Fourteenth Amendment to the Federal Constitution is violated. Railway Co. v. Williams, 251 U.S. 63.

B. G. Voorhees and Culver & Phillip for respondent.

(1) The penalty provided for causing death under Sec. 5425, R. S. 1909, is not fixed at or limited to $ 2000, and the remaining sum between $ 2000 and $ 10,000 provided to cover exclusively actual damages; the penalty is any sum, in the discretion of the jury between $ 2,000 and $ 10,000, to be determined by a consideration of the extent of the wrongful act. And for the purpose of enabling the jury to determine the extent of the wrong and to "make the punishment fit the crime," the jury may consider not only evidence of pecuniary loss, but also evidence of the facts and circumstances of the negligence. R. S. 1909, sec. 5425; Murphy v. Railroad, 228 Mo. 55; Young v. Railroad, 227 Mo. 307; Boyd v. Railroad, 236 Mo. 54; Burge v. Wabash Railroad, 244 Mo. 76; Boyd v. Railroad, 249 Mo. 110; Potter v. Railroad, 136 Mo.App. 125; Childress v. Railroad, 141 Mo.App. 688; Moyes v. Railroad, 158 Mo.App. 461; Loomis v. Railroad, 188 Mo.App. 204; Harshaw v. Railroad, 173 Mo.App. 468; Loomis v. Ry., 188 Mo.App. 204; Hankins v. People, 106 Ill. 628. (2) Section 5425, prior to the amendment in 1905, was not both penal and compensatory in the sense that a moiety or aliquot part of the $ 5000 was a penalty and the remainder was for compensation, but only in the sense that the entire $ 5000 was a penalty so far as the wrongdoer was concerned, and all compensation so far as the party entitled to sue was concerned, because the State gave the penalty to those who had suffered or were presumed to have suffered loss. Mayes v. Railway 158 Mo.App. 461; Casey v. Transit Co., 116 Mo.App. 235; Casey v. Transit Co., 205 Mo. 721; Johnson v. Railway Co., 270 Mo. 422; Gilkerson v. Railroad, 222 Mo. 201; Burge v. Railroad, 244 Mo. 90. (3) For many years prior to the amendment of 1905, Section 5425 had been construed by every appellate court in this state to mean that the entire $ 5000 was a penalty. In 1905 the Legislature amended the act retaining its exact language (so far as the portion of the act in question is concerned), and added, to emphasize and put its meaning beyond cavil, "as a penalty." The amount was changed from $ 5000 to not less than $ 2000 nor more than $ 10,000. After the amendment in 1905 it was construed to mean that the entire sum from $ 2000 to $ 10,000 was a penalty. Potter v. Railroad, 136 Mo.App. 144; Childress v. Railroad, 141 Mo.App. 667; Young v. Railroad, 227 Mo. 367. (a) The statute had been given that construction when in 1911 the Legislature amended it (in certain other respects) and re-enacted it. "The re-enactment of a statute after a judicial construction of its meaning, is to be regarded as a legislative adoption of a statute as thus construed." Sutherland on Statutory Construction, sec. 333; Stroutman v. Railroad, 211 Mo. 255; McKay v. Minter, 154 Mo. 613.

RAGLAND C. Small, C., concurs. Walker, C. J., and D. E. Blair, J., concur; J. T. Blair and Elder, JJ., concur in result; Graves ...