CONCURRING OPINION.
STURGIS, J.—I fully concur with Robertson P. J., in his opinion in this case and do not concur with Farrington, J., in the construction of section 5425, Revised Statute 1909, as regards the measure of damages applicable in cases prosecuted under that section and in requiring the plaintiff in this case to remit the damages recovered in excess of the minimum amount of $2000 allowed by that section. The effect of Ms opirnon is to make said section purely and solely compensatory as to any verdict in excess of the.mmimum amount of $2000; or, perhaps more properly speaMng, *469makes it compensatory in all respects with a minimum liquidated damage of 12000. Under that ruling the penalty provision begins and ends with the minimum amount of $2000, as it formerly did with the fixed amount of $5000, notwithstanding the statute says the offending party shall forfeit and pay as a penalty the sum of not less than $2000 and not more than $10000, making the sum assessed by the jury a penalty whatever it may be within those limits. The effect of this opinion is to require the plaintiff in all cases arising under said section 5425, where he seeks a judgment in excess of the minimum amount, to produce evidence showing a pecuniary loss to himself or those for whose benefit he brings the action in excess of such minimum amount, and in the absence of such evidence the jury must be instructed to return a verdict for $2000, no more and no less, notwithstanding the statute in question plainly says that in all cases arising under said section the amount forfeited as a penalty shall within the maximum and minimum limit be “in the discretion of the jury.” The result also is that in all cases arising under the fourth subdivision of the parties who may sue under said section—that is where the administrator or executor sues in the absence of all the legally dependent classes—the amount to be recovered is $2000, no more and no less; for in such cases, there being no legal dependency of those for whose benefit the suit is brought, there cannot be a pecuniary loss to them in excess of said minimum amount, or in any amount, as that term .is used in this connection. [Parsons v. Railroad, 94 Mo. 286, 299, 6 S. W. 464.]
Of course I am not now speaking of those eases where what is termed punitive or exemplary damages, based on malice, wantonness, recklessness, conscious negligence, or evil intent, may be awarded as regulated by section 1796, Revised Statute 1909. Such damages more properly belong to cases brought under sections *4705426-7, which, are purely compensatory, rather than those brought under section 5425, now in question; and such damages are allowed in a great variety of cases independent of either statute. [13 Cyc. 105; Buckley v. Knapp, 48 Mo. 152; Morgan v. Durfee, 69 Mo. 469; McNamara v. Transit Co., 182 Mo. 676, 81 S. W. 880; Goetz v. Ambs, 27 Mo. 28; Beck v. Dowell, 111 Mo. 506, 20 S. W. 209; Barth v. Railroad, 142 Mo. 535, 558, 44 S. W. 778; Minter v. Bradstreet Co., 174 Mo. 444, 73 S. W. 668; Gray v. McDonald, 104 Mo. 303, 16 S. W. 398; Vawter v. Hultz, 112 Mo. 633,. 20 S. W. 689.] As section 5425 says nothing about aggravating or mitigating circumstances, it is at least doubtful whether or not punitive damages can be allowed under this section. There could be no punitive damages added to a recovery already a penalty.
I find no difficulty whatever in holding that said section 5425 is both penal and compensatory. That is the only sensible construction of it. As shown by the cases cited in Boyd v. Railroad, 236 Mo. 54, 84, 139 S. W. 561, the old statute fixing $5000 as the sole and only amount to be. recovered was in a. way both penal and compensatory. Of course when the amount of the recovery was a fixed sum of $5000, whether such sum be called a penalty or liquidated damages, in all cases where the facts brought it within the provisions of the statute, of necessity there was and could be no measure of damages to be considered and applied by the jury and no evidence could be admitted tending to show or establish any element or measure of damage. The statute having fixed the damage at a definite sum, the same was already measured. The amendment of 1905 emphasized and enlarged the compensatory features of this section by leaving it to the discretion of the jury to fix the amount of the forfeit to be paid by the wrongdoer.. As said in the Boyd case, supra, at page 93: “In other words, the section under which the suit is brought does not call for any measure of *471damages. It provides for a minimum and a maximum and the exercise of a discretion by the jury between the two extremes. That discretion was certainly not intended for the exercise of mere whim, caprice, or prejudice. As the statute has a remedial side to it, the jury may consider the extent of the injury to be remedial; and as it has a penal side, the jury have the right to consider the facts of the negligence in determining the amount to be allowed under that phase of the case.
It is also sound law to hold that where the plaintiff seeks a verdict in excess of the fixed minimum amount of $2000, then, as such amount is to be determined within the fixed limits “in the discretion of the jury, ” the jury should have before it all the facts necessary and proper to be considered by it in exercising that discretion, both with reference to the penal and compensatory features of the statute; that is the facts bearing on both the compensatory and penal elements of the case. It is therefore proper as bearing on the compensatory features of the ease to admit evidence of the age, condition of health, earning capacity of the deceased and such circumstances in life as properly bear on the pecuniary loss of the parties bringing or for- whom the action is brought. Such was the holding of the Supreme Court in Boyd v. Railroad on both the first and second appeals, 236 Mo. 64, 139 S. W. 561 and 249 Mo. 110, 155 S. W. 13. It is correctly said in the last appeal of said case, 155 S. W. 13, 16: “It would be absurd to say that the Legislature believed juries so infallible that they could render correct verdicts without a knowledge of the facts upon which their discretion must operate; so we have a right to infer that by the use of the broad word ‘discretion’ it was intended that the jury should be fully acquainted with the facts of each case, to the end that they might be prepared to exercise a wise discretion— a discretion to promote justice. . . . When courts or juries *472are clothed with power to exercise discretion in the performance of duties cast upon them by the law, the power to acquire a full knowledge of the facts upon which that discretion must operate is necessarily implied. ”
The question now to be decided is whether, after the jury has heard the evidence adduced by the respective sides as to the age, health, earning capacity of the deceased, who the beneficiaries of the action are and their relationship and dependence or ‘nondependence on the deceased and all the facts bearing on the pecuniary loss of the beneficiaries of the action on the one hand, and all the facts and circumstances of the defendant’s negligence resulting in the killing of the deceased on the other hand, shall the jury in all cases be allowed to exercise the discretion given by the statute in assessing as a penalty or liquidated damages a sum not less than two or more than ten thousand dollars; or can the court by placing the damage to be allowed in excess of the minimum statutory amount on a purely compensatory basis say that the evidence as to compensatory damages does not warrant a larger amount than the minimum fixed by statute and direct a verdict for that amount, thus depriving the jury of all discretion? I am not willing tp say that such is the law in the absence of a direct ruling to that effect by our Supreme Court. It seems plain to me that the proper construction to be given to the statute in question is that the jury, after hearing all the proper evidence bearing on both the compensatory and penal sides of the statute, and being fully advised as to what facts are to be taken into consideration and what excluded in the exercise of their discretion, must then be left to exercise that discretion within the limits fixed by the statute—a discretion to be interfered with by the court, if at all,_ only when abused. [Ellis v. Street Railroad, 234 Mo. 657, 688.]
*473No construction of the statute should be made that totally ignores the penal side of the statute except as to the minimum amount. Such is not the reading of the statutes. It makes the recovery a penalty, whether minimum, maximum or intermediate. The penalty feature is plainly and unmistakably expressed in the statute itself. It is only by construction that the compensatory feature is injected into it. As said by tbe court in Murphy v. Railroad, 228 Mo. 56, 86, 128 S. W. 481, “In one permissible view of the new statute (and the one most obvious) it is penal and nothing else. The lawmakers said so. But when the whole statute is read and harmonized it might appear (by construction) that the minimum amount is left alone as nakedly and baldly penal, and that the discretion of the jury to go above that amount might be gauged on the theory of compensation, as pecuniary loss, or, if not that, as having regard to the aggravating or mitigating circumstances of the individual case. ”
My contention is that while it is proper and necessary, in order to carry out the legislative intent and accomplish the correction of the evil existing under the old statute, to construe the amended statute as including a compensatory element, yet it is neither proper nor necessary by mere construction to totally exclude the penal feature of the statute after passing the minimum amount. The statute makes no such distinction. If penal at all, it is penal throughout. That is, it is solely penal as to the minimum amount and both penal and compensatory as to any larger amount. The reading of the statute will show that it does not even mention the amount to be sued for and recovered as being damages or treat it as such. It is denominated a “penalty” which the offender must ‘forfeit and pay” for his wrongdoing. Why then should .the court lose sight of and totally ignore the wrongdoing, the penalty, the forfeiture, as soon as it passes the minimum amount. In my judgment the *474statute does not say either in terms or by necessary or even permissible construction that in cases arising under this statute that the amount -to be recovered is a penalty so far as the minimum amount is concerned, but beyond that amount it ceases to have any penal features and becomes purely and solely compensatory just like the following sections, 5426-7. A reading of the section in question in contrast with the following compensatory sections shows that they are widely, if not totally, different in this respect. The section in question contains no measure of damages. The next one does, in that the amount to be recovered is called damages and is limited to wbat is “fair and just with reference to the necessary injury resulting from such death to the surviving parties who may be entitled to sue. ” Nor is there anything in section 5425 relative to aggravating or mitigating circumstances. Such would not be necessary or proper where the amount to be recovered is partially or totally penal in its nature. It seems to me nothing but judicial legislation to suppress the penal feature of the statute after passing the minimum amount allowed to be recovered, and not only to read into the statute a compensatory feature after reaching that amount, based largely, if not entirely, on the discretion given to the jury in fixing the amount, but to make the statute purely and solely compensatory with a measure of damages borrowed from the next and radically different section.
That the penal, as well as the compensatory feature of the statute, should be retained throughout and in all cases falling within its provisions, is well expressed in the first appeal of the Boyd case, 236 Mo. 54, 92, 139 S. W. 561, as follows: “The jury should be told that if they find for the plaintiff they should allow her a sum not less than $2000 and not more than $10,000, in the discretion of the jury, and that in determining the amount-they will allow, they .may take into consideration the pecuniary loss occasioned to the plaintiff *475by the death of her husband and also take into consideration the facts constituting negligence on the part of defendant causing the death.” That the facts eonstituing negligence on the part of the defendant—the penal side of the statute—is to be taken into consideration in determining whether the amount to be recovered shall be $2000 or any amount up to $10,000, in a case not warranting punitive or exemplary damages, is shown by the holding of the court that the case then under consideration was not one warranting such punitive or exemplary damages. Referring to the first appeal of the Boyd case, supra, this court, in Hegberg v. Railroad, 164 Mo. App. 514, 549, 147 S. W. 192, said: “that on the remedial side, the jury might consider the extent of the pecuniary injury; and, as it had a penal side, the jury had a right to consider the facts of negligence in determining the defendant’s culpability and the amount of damages to be allowed under that phase of the case.”
In the case of Niehaus v. United Railways, 165 Mo. App. 606, 148 S. W. 389, which was a suit by an administrator, the court approved a verdict and judgfor $5000, and said, page 618: “We may say, however, though it is not germane to any point involved, that if there had been anything in the ease to justify it, then, under the last decision of our Supreme Court in Boyd v. Mo. Pac. Ry. Co., 236 Mo. 54, 139 S. W. 561, the question of pecuniary loss might properly have been submitted to the jury to be considered by them in determining the amount of their verdict along with the facts bearing on the penal phase of the case. But it was not necessary, under that decision, that such pecuniary loss be shown in order that plaintiff might be permitted to recover at all. In the absence of pecuniary loss the plaintiff would have a right to recover on the penal phase of the case alone, as was done here. ”
*476It is contended that the views herein expressed are in' conflict with the last opinion in Boyd v. Railroad, 249 Mo. 110, 155 S. W. 13. I do not so understand that ease, especially when read in connection with the former opinion in the same case, 236 Mo. 264, 139 S. W. 561. In the first place the question now considered was not before the court for decision in that case and its discussion is merely incidental. The question there considered and decided was whether the statute in question is purely penal, admitting of no evidence as to compensatory damages; or, whether it was so far compensatory as to admit evidence of a compensatory nature. The sole question in that case bearing on the construction of this statute grew out of the admissibility of evidence of a compensatory character, to-wit, as to the number and ages of the plaintiff’s minor children, and the age, condition of health and earning capacity of the deceased. The penal phase of the statute was not discussed because conceded. Like all court decisions, that one must be read and interpreted in the light of the point to be decided, because collateral matters are not likely to be thoroughly considered or the law governing the same accurately stated. Responding to the point at issue the court there said: “The more serious issue is what facts are juries allowed to consider in arriving at a verdict ,in excess of $2000. It might be urged that they are to consider only circumstances attending the negligence, unskillfulness, or criminal intent of the party or corporation causing the death for which recovery is sought, but it would be much more reasonable to suppose it was the legislative intent that in exercising its discretion as to the amount for which a verdict in excess of $2000 should be rendered the jury should also consider the necessary injury sustained by the party seeking the recovery.” And again: “Upon a full consideration of this case in banc, we are convinced that it was the intention of the General Assem*477bly by the amendment of 1905 to leave the provisions of section 5425, supra, penal in their nature, so far as said section fixed the amount of recovery at not less than $2000, but where a plaintiff, as in this case, seeks to recover under said section a larger sum than $2000, the jury or court in preparing itself to exercise a wise and just discretion should receive evidence of the age, condition of health, and earning capacity of the party killed, and the consequent loss to the plaintiff thereby, together with the facts and circumstances attending the killing, for which damages are sought to be recovered.”
The only words of the majority opinion in that case giving color to the other construction of the statute are: “In other words, a recovery under section 5425, Revised Statute, 1909, is penal up to the sum of $2000, but the extent to which a plaintiff may recover, if at all, in excess of $2000 under that section, is remedial and compensatory.” But in view of what was really being discussed and decided, and what the court had previously said, it was evidently meant that “a recovery under section 5425, Revised Statute 1909, is (purely) penal up to the sum of $2000, but the extent to which a plaintiff may recover, if at all, in excess of $2000 under that section, is (both penal and) remedial and compensatory.”
It is evident that the jury in this case did consider both the compensatory and penal sides of this statute and correctly applied the same to the facts in this case. The judgment is for $3000. It is evident that the jury took into consideration the fact that the deceased was old, his expectancy in life short, his earning' capacity about gone, and that the beneficiaries in this action had no special claim on his bounty. It cannot be said that the jury abused its discretion in this case.
Holding these views, I agree that this case should be affirmed unconditionally.