DISSENTING OPINION.
STURGIS, J.I concur in the opinion of Judge Farrington in this case except as to the construction placed by him on the opinion in Boyd v. Railroad, 249 Mo. 110, 155 S. W. 13, as to the measm^e of damages under section 5425, Revised Statutes 1909. My views on this matter were expressed to some extent in Harshaw v. Railroad, 159 S. W. 1, to which I again refer. As pointed out in the majority opinion, this question has also been before both the other Courts of Appeals and those courts have the same difficulty we have in understanding the full scope of the Boyd case, supra. It is apparent on reading the decisions of the Courts of Appeals, Johnson v. Railroad, 160 S. W. 5, by the Kansas City Court, Lasater v. Railroad, 160 S. W. 818, by the St. Louis Court, and Harshaw v. Railroad, supra, by this court, that all the Courts of Appeals are somewhat reluctant to interpret the Boyd case, supra, as holding that section 5425 is penal only as to the minimum amount of $2000 and is purely and solely compensatory.as to any amount above that sum. We all agree that if the Supreme Court has or does so decide, then we have nothing to say as to the correctness of such decision and will follow it, but we are *458naturally reluctant to so interpret a decision of the Supreme Court as to lead to a result which we think is wrong.
The evidence in the present case is such that on account of the old age of plaintiff and her deceased husband, his physical condition and lack of earning capacity at the time of his death, there being no minor children thrown on plaintiff for support, etc., if a judgment above $2000 is purely compensatory to plaintiff, then there is no evidence in this record to support a verdict for any such excess and, regardless of any instructions given or refused, the verdict is excessive as to such excess and an order of remittitur should go.
In determining what the opinion in the Boyd case actually decides, the language used, as in all opinions, must be understood and interpreted in the light of the point actually before and being decided by the court. In that case the only question calling for a construction of section 5425 as to the measure of damages was the admissibility of evidence of a compensatory nature, the age, earning capacity, etc., of deceased, and the giving of an instruction telling the jury to take these matters, into consideration in determining the amount of the verdict within the limits fixed by the statute. The court was combating, and decided adversely, the contention that the statute since the amendment is purely and solely penal throughout the whole range of damages now allowed, just as it was purely penal before the amendment, when $5000, no more or no less, could then be recovered. That contention is disposed of thus: “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 *459should he rendered, the jury should also consider the necessary injury sustained by the party seeking the recovery.”
The courts have steadily ruled that this statute prior to being amended in 1905 gave a fixed penalty and that no evidence of a compensatory character or tending to show the pecuniary loss of plaintiff was admissible. For the same reason evidence relating to the degree of negligence or showing wantonness or criminal intent was not admissible on the measure of damages. When, by the amendment, the jury was given a discretion to fix, within the designated limits, the amount which the offending carrier “shall forfeit and pay as a penalty” for each person killed, the Supreme Court properly said in the Boyd case, supra, that the jury should receive as a basis for the exercise of an intelligent discretion “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 hilling, for which damages are sought to be recovered.” If there is no penalty except the fixed minimum of $2000 and the penal feature has nothing to do with the amount awarded above such minimum and the same is purely compensatory, then why, in determining the amount to be awarded above that sum, should the jury consider the “facts and circumstances attending the killing”? If the amount above $2000 is purely compensatory and measured by the pecuniary .loss to the party suing, then it matters not so far as the amount to be recovered is concerned, just as it did not matter under the old statute, whether “the man was killed through mere negligence, unaccompanied by any wantonness or criminal intent” or the reverse.
If the amount above the fixed penalty of $2000 is purely and solely compensatory, it is evident that *460where the plaintiff sues for a larger amount the case is to be tried and the jury instructed exactly like it would be if brought under sections 5426-7, which is solely compensatory, except that the minimum recovery is $2000. In that view of the law the mere determination of defendant’s liability entitles plaintiff to $2000 damages and the jury should be instructed, as requested by defendant in this case, that “in awarding (further) damages you will not be actuated by a desire to punish the defendant; you must be governed solely by the law which limits allowance of damages' to a reasonable compensation for damages sustained by the plaintiff by reason of the death of her husband, James Johnson. And in determining the reasonable amount of damages so to be awarded, you should take into consideration the age and physical condition of the deceased, his expectancy of life, his pursuit in life, if any, and after considering all such facts and circumstances you will award such reasonable- sum as you think will reasonably compensate the plaintiff, not to exceed the sum of ten thousand dollars.” The instructions might go even further and tell the jury that if they found for plaintiff to award her at least $2000, but that they should disregard any and all evidence showing gross negligence, intentional wrong or wantonness or any aggravating circumstances attending the killing and to confine themselves strictly to the pecuniary loss to plaintiff in allowing any further amount. Hitherto the expression “in the discretion of the jury” would have been considered too broad and speculative to apply to compensatory damages. “It is error to submit such cases' with the general instruction that the jury may find such damages as, in their judgment from the evidence in the cause, the plaintiff ought to recover.” [McGowan v. Ore & Steel Co., 109 Mo. 518, 531, (19 S. W. 199).] The compensatory damages allowed must be limited to the necessary pecuniary loss resulting to plaintiff from the death. An instruction should *461point out the elements which, enter into the financial loss and the methods of calculating the same as near as possible; in other words, make the damages as near as may be a mathematical calculation of the loss actually sustained and remove the same as far as possible from the discretion of the jury. [Parsons v. Railroad, 94 Mo. 286, 296, 6 S. W. 464.]
It may well be asked also whether a plaintiff suing for more than the $2000 penalty under section 5425 is to be denied the right given, even under sections 5426-7, to recover exemplary damages in cases where wantonness, criminal intent or recklessness is shown. [Barth v. Kansas City El. Ry. Co., 142 Mo. 535, 558, 44 S. W. 778.]
I find that in the Boyd case, supra, an instruction was given, much like the one given in this case on the measure of damages, allowing the jury to award “a 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 occasioned to the plaintiff by the death of her husband and may also take into consideration the facts constituting negligence on the part of defendant causing the death.” This instruction was approved in allowing the jury, as a basis of exercising their discretion as to the amount of damages to be allowed between $2000 and $10,000, to consider the pecuniary loss, as the statute is not wholly penal above the minimum; and it was not condemned as allowing a consideration of the facts constituting negligence, i. e., the degree of defendant’s culpability, as the statute is not purely compensatory as to the amount within such limits.
I find also that the Boyd case, supra, was decided almost simultaneously with Harding v. Railroad, 248 Mo. 663, 154 S. W. 711, which was an action, under section 5425 by the wife for the death of her husband. The Supreme Court approved a peremptory instruction *462to find for plaintiff •which fixed the measure of damages at “not less than $2000 nor more than $10,000, in the' discretion of the jury.” The verdict was for $5,500. There was certainly nothing there to limit the damages in excess of the fixed penalty of $2000 to the necessary pecuniary loss sustained by the wife for her husband’s death. I do not think the Boyd case was intended to be in conflict with or to overrule this case.
It is pointed out by the Kansas City Court of Appeals in the Johnson case, supra, that the word “forfeit,” used in section 5425, implies a penalty and that the statute says “forfeit and pay as a penalty,” not $2000, but any sum not less than $2000 nor more than $10,000. The only word in the statute which puts into it the compensatory feature is “discretion,” which, as said in the Boyd case, implies the right to ‘ ‘ acquire a full knowledge of all the facts upon which the discretion must operate.” This lets in the facts, on the measure of damages, showing the pecuniary loss of the plaintiff, but it certainly does not shut out the facts which show “whether the conduct of defendant, which caused the death, arose from mere inattention or was willful, wanton, or reckless,” as quoted from Young v. Railroad, 227 Mo. 307, 127 S. W. 19. It is true that the Young case and the first Boyd case, 236 Mo. 54, 139 S. W. 561, were overruled in the last Boyd case, supra, bnt only so far as inconsistent with that case, which, as I understand it, was only to the extent of it being error to hold that the amount to be recovered was purely penal throughout and did not permit evidence of a compensatory nature.
In my opinion this case should be affirmed unconditionally and, believing that it is in conflict with Boyd v. Railroad, supra, and Harding v. Railroad, supra, I ask that the same be certified to the Supreme Court, unless plaintiff sees fit to voluntarily remit the amount in excess of $2000.