Tanner v. St. Louis, Iron Mountain & Southern Railway Co.

CONCURRING OPINION.

FARRINGTON, J.

— I concur in the opinion of Robertson, P. J., but desire to express my views with reference to the question raised by appellant concerning the admissibility of testimony going to the compensatory feature of the verdict.

The petition is based on the statute, section 5425, Revised Statutes 1909. The Supreme Court held in the last Boyd case (Boyd v. Railway Co., 249 Mo. 110, 155 S. W. 13) as I construe the opinion therein (see Harshaw v. Railroad, 173 Mo. App. l. c. 478-485, 159 S. W. l. c. 6-9, and Johnson v. Springfield Traction Co., 178 Mo. App. 445, 163 S. W. 893), that the damages recoverable under this statute are both penal and compensatory. If that is true, I take it that a petition based on that statute would call for both penal and compensatory damages and that under such a pleading testimony would be admissible concerning pecuniary loss. The instruction asked by the plaintiff as to the measure of damages follows the one given in the Boyd case. The defendant asked no instruction on the measure of damages except the one set out in the main opinion and that instruction shows on its face that it is based on the ground that the petition did not authorize a recovery of compensatory damages. In view of the fact that the instruction which was given for the plaintiff permitted the jury to allow two thousand dollars as penalty and fifteen hundred dollars as compensatory damages, and in view of the further fact that no instruction was asked by the defendant limiting the penalty to two thousand dollars, I thing the verdict falls clearly within the law as declared in the opinion in the last Boyd case allowing two thousand dollars *272as penalty and any additional amount as compensatory damages. There is evidence in the record of a wrongful hilling-which would support the verdict to the extent of two thousand dollars and also evidence of pecuniary loss which would.support it for any amount over two thousand dollars and not exceeding ten thousand dollars. I concur in the affirmance of the judgment.