Otto Kuehne Preserving Co. v. Allen

• Decision Date: 22 October 1906
• Docket Number: 2,311.
• Citation: 148 F. 666
• Parties: OTTO KUEHNE PRESERVING CO. v. ALLEN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

148 F. 666

OTTO KUEHNE PRESERVING CO. v. ALLEN et al.

No. 2,311.

United States Court of Appeals, Eighth Circuit.

October 22, 1906

The Allens recovered a judgment against the preserving company for damages for the death of their minor daughter, who, while in the service of the company, was killed by the collapse of its factory building at Kansas City, Mo. The complaint of the parents charged that the defendant utterly disregarded its duty to furnish its employes a reasonably safe place in which to perform their duties; that the building was unsafe for the purpose for which it was used and in the manner in which it was used, and 'was known to be unsafe by defendant, or could have been known by it in the exercise of reasonable and proper diligence and care on their part. ' After describing the age of the building and the weakness and unfitness of its walls, supports, and floors, it was further averred that 'it was gross negligence for defendant to use it and to place therein its employes'; further, that 'all of which said acts were negligent and grossly negligent on the part of the defendant'; also 'plaintiffs aver that by reason of the foregoing facts and premises defendant was guilty of gross negligence in placing their said daughter in a building that was not a safe place to work in.'

H. C Timmonds (Boyle & Guthrie, William Warner, O. H. Dean, W. D McLeod, and Hale Holden, on the brief), for plaintiff in error.

Edwin H. Stiles, James H. Reed, E. E. Yates, T. A. J. Mastin, C. M Howell and C. M. Kackley, for defendants in error.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

HOOK Circuit Judge, after stating the case as above, .

The defendant requested the court to instruct the jury, first, that under the pleadings in the case, and, next, that under the evidence, they should award the plaintiffs nothing in the way of exemplary damages. The court denied the requests, and, on the contrary, instructed them that under certain conditions stated they might, in their discretion, allow damages of that character. The verdict returned for the plaintiffs was for a single sum, and, as the jury were not directed to state the damages that were compensatory separately from those that were by way of punishment, it is to be presumed that the amount of the verdict was in part made up of damages of the latter character. The requests were sufficiently definite to challenge the attention of the court to the contention that exemplary damages were not claimed in the complaint and that the evidence in the case did not warrant their allowance. Was this a case for exemplary damages?

The action was brought under a Missouri statute (section 2865, Rev. St. 1899) providing for liability in case of the death of a person caused by the wrongful act, neglect, or default of another. The succeeding section (2866) provides that:

'In every such action the jury may give such damages, not exceeding five thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default.' It is not denied that the plaintiffs were the proper parties to bring the action. The sections of the statute referred to have received authoritative construction from the Supreme Court of Missouri. Gray v. McDonald, 104 Mo. 303, 16 S.W. 398. No new cause of action is created by them. There is simply transmitted to designated survivors the cause of action which the party injured would have had, if death had not occurred. The damages recoverable are compensatory for the necessary injury, and also exemplary when sufficient cause therefor exists. In the latter respect the statute differs from those in most states. The clause of section 2866 providing that regard may be had to the mitigating or aggravating circumstances attending the wrongful act, neglect, or default means that in a proper case exemplary damages may be awarded in addition to compensation for the necessary loss. Gray v. McDonald, supra. In other words, if the injury was inflicted under such circumstances as would have authorized a recovery of exemplary damages by the person injured, had he survived, such right of recover is, in the event of his death, transmitted to a designated survivor. But it is not meant that in every case exemplary damages are recoverable, or that in every case the jury may be instructed to consider the mitigating or aggravating circumstances. Barth v. Railway Company, 142 Mo. 535, 558, 44 S.W. 778. Whether such damages might have been recovered by the injured person, had he survived is still to be determined by settled principles of general law. In this particular the statute adds nothing and takes nothing away. As applied to the case at bar the statute simply passed along to the parents the right to exemplary damages, if any, that would have been possessed by the daughter, had death not resulted from the accident. The rules of pleading and evidence in respect of a demand for exemplary damages that apply in case the injured person survives and sues, likewise apply in an action brought under the statute. A case should be stated in the complaint which, according to settled principles of law, authorizes the recovery of such damages, and this should be followed by sufficient proof to merit an award by the jury.

In Barth v. Railway Co., 142 Mo. 535, 558, 44 S.W. 778, 785, it was said:

'It is now the settled rule of decision in this court that where there is neither allegation of malice, wickedness, of wantonness in the tort complained of, nor evidence of any aggravating circumstances, it is improper in the instruction to include the words 'having due regard to the mitigating or aggravating circumstances.' Those words are only proper in a case in which punitive damages or smart money may be allowed.'

And in Holwerson v. Railway Co., 157 Mo. 216, 243, 57 S.W. 770, 778:

'No instruction basing a right to recover upon wantonness should be given, unless the pleadings raise an issue of wantonness as distinguished from negligence, and unless there is substantial proof to support such an issue. The common practice of giving such instructions when no such issue is raised, and there is no evidence to support such a claim, has caused much of the confusion and incongruity that exists in the law, and the failure of courts and judges and text-writers to distinguish between negligence (that is, the want of ordinary care) and wantonness (that is, intentional injury purposely inflicted) is responsible for the balance of such confusion.' In Dorsey v. Railway Co., 83 Mo.App. 528, 543, the court said:

'Instruction No. 2 given for plaintiff is clearly erroneous. There is no allegation in the petition to warrant an instruction for exemplary damages; nor is there a line of testimony in the record tending to show that the engineer acted wantonly, maliciously, or unlawfully, with the intent to do wrong or to injure the passengers on his train.'

While the doctrine of exemplary damages did not find its place in our jurisprudence without controversy and diversity of judicial opinion, it is now generally accepted. Indeed, an inclination is not infrequently manifested to extend it beyond its rational limitations and apply it to cases that appeal to courts and juries and excite compassion because of distressing features of the injury rather than by reason of any wanton conduct on the part of the defendant. The conditions authorizing the allowance of such damages are well settled and clearly defined. In Day v. Woodworth, 13 How. 363, 14 L.Ed. 181, it was held that in actions of trespass exemplary damages might be awarded where the injury was wanton and malicious, or gross and outrageous, and that the amount depended upon the degree of malice, wantonness oppression, or outrage of the defendant's conduct. This case was...