Wiggins Ferry Co. v. Levinson

Eighth Circuit

Wiggins Ferry Co. v. Levinson

211 F. 122, 127 C.C.A. 520, 1914 U.S. App. LEXIS 1730

CourtCourt of Appeals for the Eighth Circuit

DecidedFebruary 2, 1914

DocketNo. 3909

StatusPublished

Cited by1 cases

This text of 211 F. 122 (Wiggins Ferry Co. v. Levinson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wiggins Ferry Co. v. Levinson, 211 F. 122, 127 C.C.A. 520, 1914 U.S. App. LEXIS 1730 (8th Cir. 1914).

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Opinion

HOOK, Circuit Judge.

A ferryboat belonging to the Wiggins Ferry Company collided with and sunk a skiff in the Mississippi river at St. Louis, Mo., and Julius' Levinson, a minor, who was in the skiff, was drowned. His parents sued the company, charging negligent management of the ferryboat, and had a verdict and judgment for $4,000.

The action was brought under a Missouri statute (section 5425, R. [123]*123S. 1909) which provides that an offending corporation "shah forfeit and pay as a penalty, for every such person * * * so dying, the sum of not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury.” In Boyd v. Railway, 249 Mo. 110, 155 S. W. 13, the Supreme Court of Missouri authoritatively held that a recovery under this section “is penal up to the sum of $2,-000, but to the extent to which a plaintiff may recover, if at all, in excess of $2,000 *' * * is remedial and compensatory.”

[1] The trial court charged the jury that if they found for the plaintiffs they should assess their damages at not less than $2,000 nor more than $10,000. Counsel for defendant excepted to the expression “assess as damages” upon the ground that the court “has characterized the statute as compensatory, and that the amount rendered is as damages rather than a penalty.” At that time counsel were erroneously contending in the trial court that the recovery authorized by the statute was wholly penal, and in no part compensatory; but now they say that the term “damages” does not properly express its double character as determined by the Supreme Court of the state.

[2] Passing the inquiry whether the of the court does not show that it used the term “damages” as synonymous with “amount of recovery,” we think that under the circumstances of the time counsel for defendant did not sufficiently direct the court’s attention to the particular objection now urged. Moreover, the verdict and judgment for $4,000 must have been, according to counsel’s contention, for compensatory damages, and since the facts which warranted such damages would, under the statute, have required the assessment of a penalty of at least $2,000 in addition, it would seem defendant was not prejudiced, whatever view might be taken. Another part of the charge of the trial court is criticised, but no sufficient exception was taken to it, and it is not assigned as error in accordance with the rules.

The judgment is affirmed.

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HOOK, Circuit Judge.

A ferryboat belonging to the Wiggins Ferry Company collided with and sunk a skiff in the Mississippi river at St. Louis, Mo., and Julius' Levinson, a minor, who was in the skiff, was drowned. His parents sued the company, charging negligent management of the ferryboat, and had a verdict and judgment for $4,000.

The action was brought under a Missouri statute (section 5425, R. [123]*123S. 1909) which provides that an offending corporation "shah forfeit and pay as a penalty, for every such person * * * so dying, the sum of not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury.” In Boyd v. Railway, 249 Mo. 110, 155 S. W. 13, the Supreme Court of Missouri authoritatively held that a recovery under this section “is penal up to the sum of $2,-000, but to the extent to which a plaintiff may recover, if at all, in excess of $2,000 *' * * is remedial and compensatory.”

[1] The trial court charged the jury that if they found for the plaintiffs they should assess their damages at not less than $2,000 nor more than $10,000. Counsel for defendant excepted to the expression “assess as damages” upon the ground that the court “has characterized the statute as compensatory, and that the amount rendered is as damages rather than a penalty.” At that time counsel were erroneously contending in the trial court that the recovery authorized by the statute was wholly penal, and in no part compensatory; but now they say that the term “damages” does not properly express its double character as determined by the Supreme Court of the state.

[2] Passing the inquiry whether the of the court does not show that it used the term “damages” as synonymous with “amount of recovery,” we think that under the circumstances of the time counsel for defendant did not sufficiently direct the court’s attention to the particular objection now urged. Moreover, the verdict and judgment for $4,000 must have been, according to counsel’s contention, for compensatory damages, and since the facts which warranted such damages would, under the statute, have required the assessment of a penalty of at least $2,000 in addition, it would seem defendant was not prejudiced, whatever view might be taken. Another part of the charge of the trial court is criticised, but no sufficient exception was taken to it, and it is not assigned as error in accordance with the rules.

The judgment is affirmed.

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Bluebook (online)

211 F. 122, 127 C.C.A. 520, 1914 U.S. App. LEXIS 1730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiggins-ferry-co-v-levinson-ca8-1914.

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