Rochester v. The Wells

• Decision Date: 11 May 1912
• Docket Number: 17,637
• Citation: 123 P. 729,87 Kan. 164
• Court: Kansas Supreme Court
• Parties: RUBEN ROCHESTER et ux., Appellees, v. THE WELLS, FARGO & COMPANY EXPRESS, Appellant

123 P. 729

87 Kan. 164

RUBEN ROCHESTER et ux., Appellees, v. THE WELLS, FARGO & COMPANY EXPRESS, Appellant

No. 17,637

Supreme Court of Kansas

May 11, 1912

Decided January, 1912.

Appeal from Wyandotte district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WRONGFUL DEATH IN MISSOURI--Compensatory Damages Recoverable in Kansas. Our statute (Civ. Code, § 419) permits the recovery of compensatory damages only for death by wrongful act. Certain sections of the Missouri statute permit such recovery--also punitive damages, but only when wanton negligence is alleged and shown. A Missouri plaintiff brought an action in Kansas, based on these sections of the Missouri statute, to recover compensatory damages only. Held, that such action can be maintained.

2. PLEADINGS--Compensatory Damages--Punitive Damages. The plaintiff by his pleading having waived any claim for exemplary damages, his action is substantially the same as one under our statute, and its maintenance here is not opposed to our laws or public policy or to good morals or the interests of our citizens, and upon the principles of comity should be permitted.

3 PLEADINGS--Same. Section 47 of the civil code merely prescribes the persons who may sue, and does not enlarge the cause of action itself.

4. PLEADINGS--Same. While the prayer is no part of the petition and does not limit or measure the right of recovery, still it may be considered in determining the relief actually sought by the pleader.

5. PLEADINGS--Same. When by his pleading a plaintiff indicates his intention to recover compensatory damages only, the court will not regard his action as one for punitive damages also.

Lathrop, Morrow, Fox & Moore, and McCabe Moore, for the appellant.

I. J. Ringolsky, Edwin S. McAnany, and Maurice L. Alden, for the appellees; Henry L. Alden, of counsel.

OPINION

WEST, J.:

Sections 2865 and 2866 of the Revised Statutes of Missouri of 1899 were as follows:

"Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.

"All damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in section 2864, and 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."

The plaintiffs, who lived in Kansas City, Mo., filed their petition in the district court of Wyandotte county, Kansas, pleading these sections and alleging that their minor son, past eight years of age, was, on or about September 17, 1909, standing and playing near the curb on the east side of Oak street between Seventeenth and Eighteenth streets in Kansas City, Mo., when a team of horses drawing a heavy express wagon owned by and in charge of the defendant's agent and servant violently collided with and ran over the boy, injuring him so that he died the next day. The petition alleged that the negligence consisted:

"3rd. In driving said wagon at a high and reckless rate of speed in a southerly direction, down grade on the east or left side of said street into and near a large number of men, women and children, when the defendant, through its said agent and employe, Robert Bybee, was, or in the exercise of reasonable diligence could have seen where said children were standing and playing on and near the street, and were running to and fro, and when said children, particularly plaintiff's child, were by such driving in imminent peril of being struck and injured by said team and wagon.

"4th. In driving said team and wagon through and near said crowd of children and others, without first stopping or giving warning of their approach, when said driver knew, or in the exercise of reasonable care and caution should have known that said Abraham Rochester was in a place of imminent peril in the street and in danger of being struck while being engaged in such a manner that he did not and could not see the approach of said team and wagon."

It also alleged:

"10. That Abraham Rochester would have been nine years of age in December, 1909, had he lived; at the time of his death he was a strong, healthy and able-bodied child of much assistance, support and comfort to the plaintiffs; that the services and earnings of the said Abraham Rochester, and the assistance he would have rendered the plaintiffs, had he lived, would have been more than ten thousand dollars ($ 10,000.00) until he would have arrived at the age of 21 years, and would have been worth more thereafter. That by the death of said Abraham Rochester, plaintiffs have been deprived of his services, assistance, support, society, comfort and maintenance; that by reason of the foregoing facts, plaintiffs have been damaged in the sum of ten thousand dollars ($ 10,000.00).

"Wherefore, plaintiffs pray judgment against defendant for five thousand dollars ($ 5,000.00) and for costs."

The defendant demurred to this petition, the demurrer was overruled, and a trial was had resulting in a verdict for the plaintiffs for $ 3000. The defendant appeals and asserts that the court erred in overruling its demurrer for the reason that the action was brought upon a penalty statute essentially different from the statute of Kansas authorizing recovery for death caused by wrongful act and that such action can not be maintained in our courts. The plaintiffs contend that as the action was in effect brought for compensatory damages only it may be maintained here, and that so far as the statute authorizes recovery for actual damages it is practically like our own. The defendant argues that an action based on the sections in question is for punitive as well as compensatory damages, and if the statute be made the basis of an action in another state it must be regarded as a whole and not as one for compensation aside from its penal features.

Section 419 of our civil code is substantially a reenactment of Lord Campbell's Act (86 Statutes at Large [Eng.], ch. 93, p. 531) and under it the action is for the pecuniary loss sustained, and exemplary damages are not allowable ( Railway Co. v. Townsend, 71 Kan. 524, 81 P. 205, and cases cited).

It will be seen that under the sections in question the amount of damages to be recovered is largely discretionary with the jury, who are expressly authorized to regard the mitigating or aggravating circumstances. It is manifest therefore that the statutes themselves provide for something more than compensation and in that respect differ from our statute. In Parsons v. The Mo. P. Ry. Co., 94 Mo. 286, 6 S.W. 464, it was held that exemplary damages could not be recovered unless the wrongful act was accompanied by aggravating circumstances. There the minor lacked but thirty-two months of his majority, and the court said that by no possibility could the actual damages have been more than $ 1800, and yet the jury returned a verdict for $ 5000. As there were no aggravating circumstances this was held excessive and set aside. The inevitable inference, however, is that had the aggravating circumstances been sufficient $ 3200 of the verdict based thereon would have been upheld, showing conclusively that punitive as well as actual damages may be recovered. As said in Haehl v. The Wabash R'y Co., 119 Mo. 325, 24 S.W. 737:

"It needs no argument to show that under this law, in a proper case, exemplary damages may be given. It has been so held, or assumed as a self-evident proposition in every case in which the attention of this court has been called to the subject, ever since the law was first enacted in 1855." (p. 341.)

It is asserted by the defendant and denied by the plaintiffs that the petition would justify a verdict for exemplary damages. In Otto Kuehne Preserving Co. v. Allen, 148 F. 666, the court of appeals of the eighth circuit held that section 2866 of the Revised Statutes of Missouri of 1899 allows such damages.

"To authorize the recovery of exemplary damages under such statute, the defendant must have acted maliciously or wantonly, or have been guilty of negligence so gross as to evince a conscious disregard of the rights of others, and the complaint must allege such facts." (Headnote, P 2.)

In that case the petition charged gross and wanton negligence in express terms, without setting out the facts which constituted such negligence, and it was held that this was insufficient. The Missouri decisions were reviewed and followed. Section 594 of the Revised Statutes of Missouri of 1899 was also quoted, providing that:

1 "In all actions where exemplary or punitive damages are recoverable the petition shall state separately the amount of such damages sought to be recovered." (p. 671.)

It was also remarked that there was no substantial evidence fairly tending to show wanton, willful or malicious conduct, and that the complaint was framed strictly upon the theory of compensatory damages.

In the petition now under consideration the allegations of negligence are probably a sufficient basis for proof of vindictive damages, but the closing paragraph indicates an intention on the part of the pleader, as does the prayer itself, to recover only actual...