Johnson v. Dixie Mining & Development Co.

156 S.W. 33, 171 Mo. App. 134, 1913 Mo. App. LEXIS 597

• Court: Missouri Court of Appeals
• Decided: April 7, 1913
• Status: Published

Opinions

FARRINGTON, J.

This action was instituted, in the circuit court of Jasper county by John Q. Johnson, the administrator of the estate of Arthur Johnson, deceased, for damages for the alleged negligent killing of the deceased while in defendant’s employ. Deceased at the time of his death was over the age of twenty-one years, and left no wife, minor child or minor children, natural born or adopted, surviving him. The petition charges that deceased lost his life by reason of the negligent failure of the defendant to furnish him a reasonably safe place in which to do his work. The suit was brought under sections 5426 and 5427, Revised Statutes 1909. The defendant demurred to the petition for the reason that it failed to state facts sufficient to constitute a cause of action in that the administrator failed to allege the name or names of the beneficiaries for whom he sued and for a failure to allege a state of facts from which the measure of damages in an action brought under these sections could be ascertained. The petition merely alleged that plaintiff was the duly appointed administrator, set out the acts of negligence complained of and the death of the deceased resulting therefrom, and alleged that the estate of the deceased had sustained injury, and the prayer was as follows: “Wherefore, plaintiff says the estate of the deceased has been damaged in the sum of seven thousand dollars, for which judgment is prayed.” The demurrer to the petition was sustained, and plaintiff- electing to stand on his petition has appealed to this court, contending that an administrator suing under sections 5426 and 5427 does so for the benefit of the estate of the deceased and is not required to allege the names of the beneficiaries for whom he sues other than the estate and is not required to allege facts other than the acts of negligence and the death of the deceased nor to show the pecuniary loss for which defendant is called upon to answer in damages except such as would naturally occur to the estate of the deceased.

Whatever may have been the holdings under the damage act, which was originally passed in 1855 in this State, through its various amendments, and which is now embodied in sections 5425, 5426 and 5427, Revised Statutes 1909, the law is well settled at the present time that section 5425 is a remedio-penal statute; penal, so far as the defendant is concerned, to the extent of two thousand dollars, and any additional amount “in the discretion of the jury which may be sued for and recovered” in a case in which punitive or exemplary damages are alleged and proved; and remedial above that amount to the extent of ten thousand dollars. In other words, under section 5425 the defendant is required to pay as a penalty at least two thousand dollars, and, in the discretion of the jury, any greater sum according to the aggravating circumstances, and under this section the plaintiff will be permitted to allege, prove and recover any necessary pecuniary damage occasioned by the wrongful act of the defénd- ■ ant to the extent of the amount named in the statute. The widow of the deceased railroad engineer who died at his post of duty is compelled to sue under section 5425 and should not be confined to a recovery only of the penalty given by the statute, but in addition thereto should be allowed to recover and be compensated for the same necessary injury or pecuniary loss that the widow who sues under sections 5426 and 5427 is allowed.

The enabling provisions of the statute designating the parties and classes of parties to whom this penal and compensatory amount recovered shall go, are always held to be remedial. [Boyd v. Railroad, 236 Mo. 54, 139 S. W. 561.] The law as announced in the case just cited puts at rest many of the mooted questions under the statutes and addresses itself to the bench and bar of the State as being a sound and sensible solution.

Section 5426 has stood as it is now written since the Damage Act was first enacted in 1855-, and section 5427 has been amended only to the extent of changing the amount which may be recovered and from time to time adding the classes entitled to sue as they have been added to section 5425. The amount recoverable under sections 5426 and 5427 has always been held to be compensatory damages, and if the two latter sections be read in connection with the whole act no other conclusion can be reached than that they are intended to give only compensatory damages. [See Proctor v. Railroad, 64 Mo. l. c. 119, 120; Schaub v. Railroad, 106 Mo. 74, 93, 16 S. W. 924; McGowan v. The St. Louis Ore & Steel Co., 109. Mo. 518, 531, 19 S. W. 199; Hegberg, Admr., v. Railroad, 164 Mo. App. 514, 551, 147 S. W. 192; Tetherow v. Railway Co., 98 Mo. 74, 86, 11 S. W. 310; Boyd v. Railroad, 236 Mo. 54, 88, 139 S. W. 561, and cases cited; Behen v. St. Louis T. Co., 186 Mo. 430, 447, 85 S. W. 346; Hartnett v. United Rys. Co., 162 Mo. App. 554, 558, 142 S. W. 750; Honea v. Railway Co., 245 Mo. Sup. 621, 151 S. W. 119, 125 and also page 127.]

The case of Hawkins v. Smith, 242 Mo. 688, 147 S. W. 1042, as well as a long line of decisions therein cited, holds that there is no new cause of action created in the classes who may bring the suit, bnt that it is a transmitted right.

In 1905 when the Legislature added the administrator as the fourth class who could sue under section 5425, it failed to amend section 5427, and between 1905 and 1907 the maximum amount recoverable under sections 5426 and 5427 was five thousand dollars and could not be recovered by an administrator. [Crohn v. Telephone Co., 131 Mo. App. 313, 109 S. W. 1068.] Hence section 5427 was amended in 1907 hy making the maximum amount ten thousand dollars and designating the parties and the manner as provided in section 5425.

By a strict construction of section 5427 an administrator in his suit, after having eliminated the various classes who could sue before his right would attach, would have no one as a beneficiary because, following, in the same provision, we have the clause, “to the surviving parties who may be entitled to sue,” and as the only surviving parties who have been named that were entitled to sue were those named in the first, second, and third clauses, the administrator in order to exclude all classes ahead of him would exclude those for whom he would sue. However, for the purpose of deciding this case and giving the most liberal construction possible, as section 5427 refers by number to section 5425, and as section 5425 allows an administrator to recover for some' one, to-wit, those who are entitled to the money according to the laws of descent, and as the enabling acts designating the parties to receive the money are remedial and ought therefore be given a liberal construction, we think the administrator under section 5427 would sue for the same parties as he would maintain his action for under section 5425, namely, where the deceased was an adult, for the father and mother, brothers and sisters, etc. In other words, that by referring to the class who receive under the laws of descents, the Legislature intended that the father and mother, brothers and sisters, etc., of a deceased adnlt would be the surviving parties who may be entitled to sue, and that he may maintain the suit for this fourth class under section 5427; and the Legislature meant under section 5427 that if there is a father and mother, brothers and sisters, or any of these, who have suffered a necessary injury — and by necessary injury is meant a pecuniary loss (see Knight v. Lead & Zinc Co., 75 Mo. App. 541, 647, and cases cited) —then the plaintiff as administrator, acting in the capacity of a trustee for the class named, is entitled to bring the suit provided it can be shown that some one or all of this class is entitled to compensation for a pecuniary loss. The courts of this State have uniformly held that sections 5426 and 5427 are in no sense penal, but purely compensatory. For that reason the husband or wife suing under this section must show the pecuniary loss and the damages must he pleaded and proved in order to recover; so, also must the minor child or minor children show a pecuniary loss; and much more so must the father and mother of a minor child or the father and mother or brothers and sisters of an adult show this pecuniary loss because as to the last two classes the presumption of law which attaches to the husband or wife or to the minor children does not obtain. As section 5426 has never been amended, and is what is generally known as the Lord Campbell’s Act of our statute, under which the recovery is damages for compensation only, the recent case of Michigan Cent. R. Co. v. Vreeland, 33 Sup. Ct. Rep. 192, 196, in discussing Lord Campbell’s Act with reference to the pecuniary loss, is applicable here.

In the opinion of Noetoni, J., in the case of Nicholas v. Kelley, 159 Mo. App. 20, 139 S. W. 248, in discussing the bearing on section 8523, Revised Statutes 1909, of the amendment thereto, viz., “may be recovered as provided by section 5425,” it was held that it would not Lave the effect of changing section 8523 from a damage section to a penal section; so we hold that the amendment of 1907 by providing that the recovery shall he had by the same parties and in the (same manner as in section 5425 would not change section 5427 to a penal section, but would leave it, as it has been from the date of its enactment, a section providing for the recovery of compensatory damages. Under this section it would be necessary, in order for the administrator to maintain an action, to show for whom he brought it and wherein they are entitled to be compensated for the necessary injury — pecuniary loss.

The reasons given by NixoN, P. J., in the case of Hegberg v. Railroad, 164 Mo. App. 514, 147 S. W. 192, in that part of the opinion covered on pages 553 to 559, meet with our entire approval. The opinion in that case is sufficiently clear in its holding that the,administrator under our statute sues as the trustee of an express trust for the benefit of the distributees who are named in section 332 of the laws of descents and distribution. If it should he held that the administrator sues for the benefit of the estate, then the measure of damages accruing to the estate would probably be the amount the jury might find that he would have accumulated over and above his living expenses during the time of his expectancy and the recovery would be for such amount. The injustice such a construction' would lead to can be readily seen by comparing the amount an administrator would receive with that which a minor child would receive for the death of his father. ' The minor child can recover only such pecuniary loss as he can show would he sustained from the time of the death of his father to his majority, while should the administrator recover for the estate and should the estate under the law of descents go to a brother or to a deceased brother’s child, the brother, or nephew, as the case might be, would receive an amount as compensation not limited to probably a few years as in the ease of a minor child of the deceased, but probably to a long term of years, to-wit, to the end of the expectancy of the deceased. «Again, the brother or nephew through the statute would recover all the net earnings of the deceased, whereas the minor child of the deceased could recover only that part of the earnings which he could reasonably expect to receive the benefit of. We cannot believe the Legislature intended to make so liberal a distribution in favor of the collateral kindred under the fourth clause of the statute, when under the other clauses the recipient of the fund is limited strictly to his necessary and pecuniary loss. Besides, if any force is given to the expression in section 5427 — “to the surviving parties who may be entitled to sue”— neither an estate nor an administrator can be held to be a surviving party entitled to sue; and the most liberal construction that can be given to section 5427, carrying; with it rhe fourth clause, is to hold that if there is any one or more within the class as designated in section 332, who have suffered necessary pecuniary injury and loss by reason of the wrongful death, then the administrator may maintain such action as a trustee for them, and in order to do so it seems imperative on him to designate the parties who have survived the deceased, and their relationship to the deceased, and facts showing the pecuniary loss they may have sustained for which the defendant must answer in compensatory damages.

The statutes and decisions of courts of other States cited by counsel have been examined, and while probably all the statutes are based oh Lord Campbell’s Act, there are none exactly like the Missouri statute — certainly none where the classes have been added and the amendments made as in this state. It is true, the Florida statute was held by a majority of the Supreme Court of that State to permit an administrator to sue for the benefit of the estate, but the statute provides for an injured party and not an injured surviving party, and the classes who must bring the suit if living in preference to the administrator of the „ deceased include not only those specifically named in our statute, but all dependents as well, and by exhausting all of the next of kin and all dependents, the court held that under their statute the administrator could sue for the benefit of the estate. There seems to be a vast difference between a case presented by an administrator under the Florida statute and one presented by an administrator under our own statute. To hold that the executor or administrator would recover for the benefit of the estate, which recovery he would take into the probate court and distribute under the orders of that court, seems to us to be in direct conflict with the wording of the statute. If this construction should be placed upon it, the next of kin would take subject to the costs of the probate proceedings and subject to the claims of creditors against the estate of the deceased. The statute expressly says that the amount recovered by the administrator shall be distributed according to the laws of descents — not according to the laws regulating the administration of the estates of deceased persons. The administrator or executor in this case is by the statute made the trustee of an express trust, as much so as an executor named in a will is a trustee of an express trust of a fund to be handled by him long after the administration of the will is closed in the probate court; and he is no more answerable for the management and distribution of the fund-recovered under the statute to the probate court than an executor named as a trustee of an express trust in a will is answerable, so far as that trust is concerned, to the probate court.

The question as to the amount each of the beneficiaries would receive on a recovery is not before us, and as to how it would be divided we will not decide until such question-is presented to us. It will be note! that as to the second class named in section 5425 there is a failure to provide how the money recovered shall be divided among the minor children, when necessarily, according to their respective ages, some would be entitled to receive more of the recovery than others, yet the courts have permitted judgments to stand without going into the question concerning the proper distribution of the fund between the children. In the case of McGowan v. The St. Louis Ore & Steel Co., 109 Mo. 518, 19 S. W. 199, a recovery of five thousand dollars was allowed to stand where the suit was brought for four minor children ranging in age from five to sixteen years.

For the reasons herein appearing, we think the action of the trial court in sustaining the demurrer was proper, and the judgment is therefore affirmed.

Sturgis, J., concurs. Robertson, P. J., dissents.