Moyes v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 30 June 1911
• Citation: 158 Mo. App. 461,138 S.W. 937
• Court: Missouri Court of Appeals
• Parties: MOYES v. ST. LOUIS, I. M. & S. RY. CO. et al.

138 S.W. 937

158 Mo. A. 461

MOYES v. ST. LOUIS, I. M. & S. RY. CO. et al.

St. Louis Court of Appeals. Missouri.

June 30, 1911.

DEATH (§ 100) — RIGHT OF ACTION — RECOVERY OF PENALTY.

Under Rev. St. 1899, § 2864, providing that, whenever the negligence of any employé in charge of any locomotive or train shall cause the death of any person, the railroad company "shall forfeit and pay, for every person or passenger so dying, the sum of $5,000," as amended by Laws 1905, p. 135, providing that such railroad "shall forfeit and pay as a penalty for every such person, employé or passenger so dying, the sum of not less than $2,000 and not exceeding $10,000 in the discretion of the jury," in an action for death under such a statute, the jury in determining the penalty cannot consider the value of the life destroyed, as that would be giving compensation for an injury, instead of fixing a penalty for a wrongful act.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Mary Moyes, as administratrix of the estate of William E. Simmons, deceased, against the St. Louis, Iron Mountain & Southern Railway Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded, and case certified to Supreme Court.

Watts, Williams & Dines, Wm. R. Gentry, J. F. Green, T. M. Pierce, G. T. Priest, S. P. McChesney, and R. T. Railey, for appellants. Carter, Collins, Jones & Barker, for respondent.

CAULFIELD, J.

This is concededly a suit to recover under section 2864, R. S. 1899, amended by the Laws of 1905, for the death of plaintiff's intestate, William E. Simmons. The suit was originally brought against three corporations, but plaintiff suffered a nonsuit as to one of them, the Chicago & Alton Railroad Company. She did, however, recover judgment for $5,000 against the other two, the St. Louis, Iron Mountain & Southern Railway Company and Terminal Railroad Association of St. Louis, and they have duly prosecuted their appeal therefrom to this court.

The defendants assign as error the action of the trial court in giving, at the instance of the plaintiff, an instruction on the measure of damages as follows: "The court instructs the jury that, if you find for plaintiff, your verdict must not be for more than $10,000 nor less than $2,000, and between these limits you are the sole judges of the amount of the penalty that should be imposed, and in arriving at the amount, if you find for the plaintiff, you may consider deceased's age, physical condition, and earning capacity at the time of his death."

This case presents the important question direct whether, under section 2864 of the Revised Statutes of 1899, as amended by the act approved April 13, 1905 (Laws 1905, p. 135), the jury in fixing the amount of the penalty should consider alone the degree of culpability involved in the act or omission aimed at, without reference to the pecuniary value of the life destroyed. So much of section 2864, R. S. 1899, as here concerns this question may be set forth as follows: "Whenever any person shall die from any injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employé whilst running, conducting or managing any locomotive, car or train or cars, * * * the corporation * * * in whose employ any such officer, agent, servant (or) employé, * * * shall be at the time such injury is committed, or who owns any such railroad, locomotive (or) car, at the time any injury is received resulting from or occasioned by any * * * unskillfulness, negligence or criminal intent above declared, shall forfeit and pay for every person or passenger so dying, the sum of five thousand dollars."

The act of 1905, so far as we are here concerned with it, in addition to making the section applicable in case of the death of an employé, amended it by inserting after the words "forfeit and pay" the words "as a penalty," and by striking out the words "five thousand dollars," and inserting in lieu thereof the words, "not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury," so that that portion of the section affected was made to read as follows: "Shall forfeit and pay as a penalty for every such person, employé or passenger so dying, the sum of not less than two thousand dollars and not exceeding ten thousand dollars in the discretion of the jury."

Prior to the amendment of 1905, it was held that section 2864 was highly penal, and that the amount named in the statute was intended to be a penalty inflicted as a punishment upon the person guilty of the wrongs therein sought to be prevented, and not as compensation to the party aggrieved. Casey v. Transit Co., 116 Mo. App. 235, 91 S. W. 419; Young v. Railroad, 227 Mo. 307, 333, 127 S. W. 19. It has been said that such acts as this one are both penal and compensatory, and that is true in a sense, but we believe only in the sense that the penalty, as such, may under the statute accrue to the one aggrieved, and to the extent of such penalty compensate him or her. Such compensating is a mere incident, if not to say chance. It concerns merely the disposition of the penalty after it has been imposed as such, and has nothing to do with such imposition, or the manner thereof. Without changing the character of the act in the least, the Legislature might have made an entirely different disposition of the penalty imposed. It might have given it to the state or county. Barnett v. Atlantic & Pacific Ry. Co., 68 Mo. 56, 63, 30 Am. Rep. 773. If it had, no one would question the impropriety of ascertaining the pecuniary value of the life...