SEPAEATE CONCUEEING OPINION.
STUEGIS, J.After much consideration, though contrary to my first impressions, I am constrained to concur in the essential features and the result reached in the opinion of FarrotgtoN, J., in this case.
It seems to me that the whole question involved here turns on the narrower question of the measure of damages to be applied in cases originating under sections 5426 and 5427, Eevised Statutes 1909, of the Damage Act as the same now stands.
At common law and in the absence of a statute the cause of action on the one hand and liability on the other growing out of personal injuries inflicted upon one person by the wrongful act or neglect of another died with the death of the injured party. The sole purpose of section 5426 is to keep alive and transmit, without saying in whom or to whom, the defendant’s *148liability to an action for damages growing out of tlie injury inflicted by sucb wrongful act or neglect, not-' withstanding the same caused or resulted in the death of the injured party. This section of our statute has never been changed or amended since its enactment in 1855. Section 5427 .provides for and designates the persons to whom and 'for whose benefit' the liability is perpetrated and transmitted, and who may recover for the same, by reference to a previous section of the statute on the same subject; also the measure of damages (somewhat indefinite to be- sure) and the maximum amount to be recovered in any such case. This sóction has never been amended, except as to the maximum amount and to keep that section in harmony with the section referred to as to the persons who could sue on the transmitted cause of action. It has never been changed or amended as to the measure of damages.
While the cases generally say, speaking from the standpoint of the beneficiary or plaintiff, that the cause of action is transmitted and kept alive (Hennessy v. Brewing Co., 145 Mo. 104, 112, 46 S. W. 966; Gray v. McDonald, 104 Mo. 303, 311, 16 S. W. 398; Strottman v. Railroad, 211 Mo. 227, 255, 109 S. W. 769; Hawkins v. Smith, 242 Mo. 688, 147 S. W. 1042), the statute, section 5426, speaking from the standpoint of the wrongdoer or defendant, makes the liability continue notwithstanding the death of the person injured. It is, however, the bare liability that is preserved and transmitted — the mere right to sue. The elements of injury — the measure of damages — are not transmitted. [McGowan v. Ore & Steel Co., 109 Mo. 518, 531, 19 S. W. 199; Marshall v. Jack Mines Co., 119 Mo. App. 270, 95 S. W. 972; Leahy v. Davis, 121 Mo. 227, 25 S. W. 941; Parsons v. Railway Co., 94 Mo. 286, 6 S. W. 464; Barth v. Railway Co., 142 Mo. 535, 44 S. W. 778; Knight v. Lead & Zinc Co., 75 Mo. App. 541, 550.]
*149The measure of damages on the transmitted liability is prescribed by section 5427, and is: ‘ ‘ such damages, not exceeding ten thousand dollars, as they (the jury) may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may he entitled to sue, and also having regard to the mitigating and aggravating circumstances attending such wrongful act, neglect or default.”
In the absence of that degree of culpability on the part of defendant warranting punitive or exemplary damages, which is held to be included in and warranted by the last clause of the section, “having regard to the mitigating and aggravating circumstances, etc.” (Boyd v. Railroad, 236 Mo. 54, 93, 139 S. W. 561), the damages to be recovered under this section has always been held to be compensatory only — the pecuniary injury necessarily resulting from such death. [McGowan v. Ore & Steel Co., 109 Mo. 518, 19 S. W. 199; Knight v. Lead & Zinc Co., 75 Mo. App. 541; and the long line of cases cited by Farrington, J.]
The damages are not only limited to such as are pecuniary and necessarily resulting from the death but to such as result to the particular person or class of persons who survive and are authorized to sue. Such is the language of the statute. [McPherson v. Railway, 97 Mo. 253, 10 S. W. 846; Sipple v. Gaslight Co., 125 Mo. App. 81, 102 S. W. 608; Rains v. Railway, 71 Mo. 164; Calcaterra v. Iovaldi, 123 Mo. App. 347, 100 S. W. 675.]
The difficulty in the construction of this statute arises from the fact that the Legislature first amended the preceding penal section 5425 by the addition of a fourth party (administrator or executor) who, in the absence of the particular designated parties who could sue in their own right, could maintain an action in a representative capacity for the benefit of whoever might take the fund recovered according to the statute *150of descent. [Hegberg v. Railroad, 164 Mo. App. 514, 553, 147 S. W. 192.] The amendment, being primarily designed for section 5425, a penal section, fits nicely into the context of that section and makes a harmonious whole, but being loosely incorporated into section 5427 by mere reference to “the same parties and in the same manner as provided by section 5425,” the language is a misfit and confusing. It is, however, hardly necessary to determine in this case whether the administrator or executor suing under section 5427 does so for the benefit of the same parties designated in section 5425, that is, those taking the fund recovered according to the statute of descent; but it seems plain that whoever such beneficiaries may be, this section of the statute and any action thereunder is compensatory only and the damages to be recovered are limited to the pecuniary loss resulting from the death to the persons for whose benefit the suit is being maintained.
It is rightfully held in Nichols v. Kelley, 159 Mo. App. 20, 139 S. W. 248, that the amendment of a purely compensatory section of the statute by a reference to the penal section for the persons who could sue did not change the nature of the action thereunder from one for compensation for loss suffered to one for a penalty. It is still a statute allowing damages only and not a penalty. That this section ought to be made penal like the preceding section, 5425, is a matter for the consideration of the legislative department of our State government.
It follows therefore that an action by an administrator under section 5427 is compensatory only and the amount to'be recovered, as in Lord Campbell’s Act on which it is founded, is measured by the necessary pecuniary loss to the persons for whose use and benefit the action is brought.
It would be competent for the Legislature to prescribe as a measure of damages, with reference to a *151suit by tbe administrator, tbe damage to tbe estate of tbe deceased, but that would be a new and different measure than that already prescribed, by section 5427 prior to permitting an administrator to sue thereunder. This seems to have been done in other States. [Southern Pacific Co. v. Wilson, 85 Pac. (Ariz.) 401; In re Meekin, 64 N. Y. 145, 51 L. R. A. 235; McCabe v. Light Co., 61 Atl. (R. I.) 667.] To do so by construction would be judicial legislation. The Legislature did not do so and the measure of damages is left as it has always been. The mere authorization of an administrator to sue under this section does not work a change as to the measure of damages in such suits.
The defendant would have a right to controvert the alleged fact of th'e relationship to or dependency on the deceased and also the amount of loss necessarily sustained by the persons for whose benefit the suit is brought by the administrator; and a statement showing who these persons are, for whose benefit the suit is brought, is therefore essential in stating a cause of action under this section, at least where the plaintiff is suing for more than nominal damages.