In Treadway v. United Railways Co., 300 Mo. 156, 253 S.W. 1037, our Supreme Court, in discussing instruction No. 2 there under review, said:
"The instruction set out above told the jury in substance that if they found the issues for the plaintiff they should assess his damages as such sum as would compenate him for the injury resulting to him by reason of his father's death. The instruction was clearly erroneous. In the first place, it involved a fundamental misconception of the considerations that should have governed the jury in determining the amount of the recovery, in that it directed them to assess damages in favor of theplaintiff; whereas, the duty enjoined upon them by the statute was to assess a penalty against the defendant. Plaintiff's cause of action was not for damages, but for the penalty accruing under the statute.
"In the second place the instruction told the jury in effect that they must assess plaintiff's recovery at a sum that would compensate him for his pecuniary loss; whereas, they should have been left free to assess it at a smaller amount had they in the exercise of their discretion seen fit to do so. Plaintiff's pecuniary loss was in no sense the measure of his recovery. While his award under the facts of this case could reasonably have equaled or exceeded the amount that would compensate him for his pecuuiary loss, it could just as reasonably have been fixed at a lesser sum, in the discretion of the jury. We held in Grier v. Railroad, supra, that the jury in assessing the *Page 1184 penalty against the defendant for wrongful death under section 4217 may properly take into consideration the pecuniary injury inflicted upon plaintiff. We so hold now. But such injury is but one fact to be considered with others, and the importance to be given it as a factor in determining the amount of the penalty should be left to the unfettered discretion of the jury.
"For the reasons indicated, the giving of plaintiff's instruction No. 2 was reversible error."
The instruction under review in the present case is as follows:
"The court instructs the jury that if under the other instructions given to you in this case you find the issues in favor of plaintiff, then you should assess her damages, if any, at such sum, if any, as you believe and find from the evidence to be a fair and just pecuniary compensation, only for damages, if any, to her, occasioned by the death of William Lee Pedigo, not exceeding the sum of ten thousand dollars."
This instruction has the same vice — more strongly put — as the instruction condemned in the Treadway case. It, not merely in substance and effect but in express terms, tells the jury that they must assess the plaintiff's damages at such sum as they believe to be a fair and just pecuniary compensation for damages to her occasioned by the death of her husband, and that, too, without discretion to do otherwise. If the pronouncement in the Treadway case is still the law of this State, clearly the instruction in the present case is reversibly erroneous.
The cases relied on by plaintiff do not overrule or qualify what was pronounced as the law in the Treadway case, but distinguish and reaffirm it.
In the McDaniel case the instruction under review is as follows:
"If the jury find for the plaintiffs, they will assess the damages not less than $2000 or more than $10,000 at the discretion of the jury."
The court in that case said:
"The point urged is that the instruction told the jury they might assess damages, whereas they should have been told to assess a penalty. The instruction here does not, as in the Treadway case, submit the question of damages with the specific element of compensation for pecuniary loss, and compensation for injury resulting from the death of the person deceased. In this case the question of amount, within the statutory limits, was left to the discretion of the jury, without directing their attention to the element of compensation for injury or loss. . . . As has been pointed out, the instruction left the amount (within the statutory limits) to the discretion of the jury, without more direction. Under the holding in the Grier Case 286 Mo. loc. cit. 540, 228 S.W. 454, and in the Treadway Case, *Page 1185 300 Mo. 156, 253 S.W. loc. cit. 1042, 1043 a jury told to assess a penalty (within the limits prescribed by the statute) in their discretion, and without other direction, `would inevitably and necessarily' take into consideration `the acts or omissions constituting negligence, or evidencing criminal intent, with their attendant circumstances,' and also in a case involving pecuniary loss, might `properly take into consideration the pecuniary injury inflicted upon the plaintiff.' Referring to the foregoing, and closing the opinion in the Treadway case this court said: `But such injury is but one fact to be considered with others, and the importance to be given it as a factor in determining the amount of the penalty should be left to the unfettered discretion of the jury.' This was said in view of the fact that the instruction there condemned, in effect told the jury, `they must assess plaintiff's recovery at a sum that would compensate him for his pecuniary loss.' In the instant case the jury was left, under the instruction given, to its discretion, unfettered, except by the statutory limits, and except that the amount they might assess was by the instruction characterized as damages, and not as a penalty. Since, if the word `penalty' had been used, the jury, in determining the amount defendant should pay, could properly have considered the circumstances attending the act or omission causing the injury, and also the pecuniary loss resulting to plaintiffs, it is not perceivable how the defendant was injuriously affected by the use of the word `damages,' instead of the word `penalty,' as descriptive of the nature or legal character of the action, and of the amount or sum of money which it might be found that the defendant should pay, and the plaintiff should recover; nor, is it conceivable that a jury composed of laymen would understand the instruction as other than a direction to them, in their discretion, and under the facts before them, to fix within defined limits, the amount which defendant should pay and the plaintiffs recover."
In State ex rel. Wabash Ry. Co. v. Bland, the court having under review an instruction similar to the instruction under review in the McDaniel case, said:
"It is strenuously insisted by relators that, under the decisions in Treadway v. Railways, 253 S.W. 1037, 300 Mo. 156, and Grier v. Railroad, 228 S.W. 454, 286 Mo. 523, the instruction was erroneous. In this they are right; it was technically erroneous. But in McDaniel v. Davis (Mo. Sup.), 266 S.W. 710, it was held that the giving of such an instruction, the facts of the case and the wording of the particular instruction considered, did not constitute reversible, that is, prejudicial error. The same situation possibly exists with reference to the case under review. But it is remarkably strange that the word `damages' instead of `penalty' continues to be used in such instructions, in the face of the statute and repeated rulings of this court. The persistence in that practice illustrates anew the laggard *Page 1186 conservatism of the bench and bar. When once they have gotten into a particular rut and followed it for any considerable length of time, nothing short of an upheaval of cataclysmic proportions can get them out of it. Notwithstanding, we take this occasion to point out that the use of the word `damages' in an instruction upon the measure of recovery under the statute in every instance invites the closest scrutiny and a possible reversal."
The instruction under review in the Ward case advised the jury as follows:
"If you find for the plaintiff, you should allow her such sum not less than $2000 nor more than $10,000 in the discretion of the jury, and in determining the amount you will allow her, you may take into consideration the pecuniary loss, if any, occasioned to plaintiff by the death of her husband."
In disposing of that case the court said:
"It is argued that this suit was brought under section 4217, Revised Statutes 1919, the penal statute, and therefore the recovery must be a penalty and not compensatory; the amount awarded should not be measured by the pecuniary loss to the plaintiff. . . .
"The case of Treadway v. United Railways Co., 300 Mo. 156,253 S.W. 1037, is cited by appellant as in point to show that part of the instruction objected to is erroneous. The instruction in that case (300 Mo. 176, 253 S.W. loc. cit. 1042) contains this:
"`The court instructs the jury, if, under the evidence and other instructions in this case, you find your verdict for plaintiff, then you will assess his damages at any sum, not exceeding $10,000, that you may deem fair and just, having reference to the necessary injury, if any, resulting to the the plaintiff, . . . and you may take into consideration in estimating said damages, if any, the loss of support,' etc.
"Judge RAGLAND, writing that opinion and having in mind the Grier case, held that instruction was erroneous because it directed the jury to assess damages in favor of the plaintiff, whereas it was their duty to assess a penalty against the defendant; and the objection was made that it told the jury they `must assess plaintiff's recovery' at a sum which would compensate plaintiff for his pecuniary loss. Do those objections apply here?
"The jury in this case, instead of assessing the damages to plaintiff, were authorized to allow her such sum not exceeding, etc., `in the discretion of the jury.' They were not directed to assess her damages. Any verdict they could render, assessing a penalty, would have to be allowed her. Hence, when they were directed if they found for her to allow her a sum within the statutory limit in their discretion, they were strictly within the statute and within the ruling in the Grier case. *Page 1187
"Appellant apparently concedes that facts showing the pecuniary loss to the plaintiff were admissible to assist the jury in determining the amount of penalty which they would assess. It claims that the instruction authorized the jury to compensate the plaintiff for damages sustained. Grammatically, it does not say so. If the defendant thought the instruction was likely to mislead the jury in that respect, it should have asked an instruction more clearly defining the manner in which they should consider evidence of that character, limiting their consideration of it to the infliction of the penalty. The court could very properly have given an instruction telling the jury they were not authorized to assess plaintiff's damages as a compensation for the injury so suffered, but that they could only assess a penalty against the defendant, and they should consider only the pecuniary loss to her for the purpose of determining the amount of the penalty. The defendant failed to ask any instruction further qualifying that matter, and therefore is not in position to complain of the instruction."
The court, discussing the instruction under review in the Toeneboehn case, said:
"Objection is made to plaintiff's instruction 6 on the amount of the recovery. It is said that the instruction does not direct the jury to assess a penalty against the defendant in the event they found for plaintiff, but proceeds upon the theory of damages, and authorizes the jury in determining the amount of their award, to consider pecuniary loss. The instruction does not use the word `penalty,' nor does it use the word `damages.' The instruction complained of is a literal copy of the instruction given in Ward v. Mo. Pac. Ry., 277 S.W. and there set out, l.c. page 912. The giving of that instruction was held not reversible error upon hearing of that case, en banc; and this point is also ruled against defendant."
It is obvious that these cases do not manifest any disposition on the part of our Supreme Court to overturn what was put down as the law in the Treadway case.
The vice of the instruction in the Treadway case, as pointed out by the court, consisted not merely in that it directed the jury to assess damages in favor of plaintiff, but in that it both directed the jury to assess damages in favor of plaintiff and went further and advised the jury that in estimating the damages they might take into consideration the pecuniary loss resulting to plaintiff, so that the instruction in substance and effect directed the jury to assess the plaintiff's recovery at a sum that would compensate him for his pecuniary loss. None of the instructions ruled on in the cases relied on by plaintiff is possessed of this vice. The instruction in the present case does not merely direct the jury to assess damages in favor of plaintiff and advise them that they may take into consideration the pecuniary loss resulting to plaintiff, but it in distinct and positive *Page 1188 terms directs the jury to assess the plaintiff's damages at such sum as will be a fair and just pecuniary compensation for damages to her occasioned by the death of her husband. The instruction is not merely technically erroneous, but, on the contrary, is peculiarly prejudicial under the facts of this case. The conduct of plaintiff's husband was such as to convict him of contributory negligence as a matter of law. The only negligence of defendant shown upon which liability might be predicated was its negligence in the violation of the humanitarian rule, and upon this issue the case was a close one. Though we entertain no doubt that the evidence was sufficient to take the case to the jury under the humanitarian rule, the jury might well have found that defendant's negligence was such as to render it liable under the humanitarian rule, but that it was not such as to warrant the infliction of a heavy penalty, and it may be that the jury would have thought that the penalty which the evidence warranted was much less than the amount which they thought would be a fair and just pecuniary compensation to plaintiff for damages to her occasioned by the death of her husband, and that they would have so found by their verdict, if they had been allowed to do so. Nor can it be said that the instruction is couched in general or indefinite terms, or is lacking in clarity, so that it might have been cured by a further instruction if defendant had seen fit to request one. If the defendant had requested and the court had given an instruction telling the jury that they were not authorized to assess plaintiff's damages as a compensation for the injury suffered, but that they could only assess a penalty against the defendant, and that they should only consider pecuniary loss to her for the purpose of determining the amount of the penalty, this would not have cured, but would have been in diametrical conflict with, the plaintiff's instruction, which directed the jury to assess plaintiff's damages at such sum as would be a fair and just pecuniary compensation for damages to her occasioned by the death of her husband.
The Treadway case is necessarily controlling here, and the Commissioner recommends that the motion for rehearing be overruled.