objection did not point out the specific statement complained of, nor call the attention of the trial court to the specific grounds upon which the objection was based. It need not therefore be considered. Torreyson v. Railways Co., 164 Mo. App. 366, 145 S. W. 106; State v. Phillips, 233 Mo. 299, 135 S. W. 4; State v. Ruck, 194 Mo. 416, 92 S. W. 706, 5 Ann. Cas. 976. [15] Another remark objected to, made by Mr. Cullen, appears in the record as follows: "Now, there should have been either signals, or the men on such a day-" Defendant's counsel interposed an objection, saying: "We object to that argument about signals being out;" and defendant preserved an exception to the overruling of this objection. The record does not show that the sentence in question was ever completed. The ground of the objection doubtless was that the right of recovery was not predicated upon the failure to have out signals on the day in question, but this was not specifically stated; and we may say further that, from what appears before us, we do not see that this remark of counsel could well have been so prejudicial to the rights of defendant as to be ground for reversal. Clay & Davis, of Joplin, for appellant. Spencer, Grayston & Spencer, of Joplin, for respondent. FARRINGTON, J. This action was instituted in the circuit court of Jasper county by John Q. Johnson, the administrator of the estate of Arthur Johnson, deceased, for damages for the alleged negligent killing of the deceased while in defendant's employ. Deceased at the time of his death was over the age of 21 years, and left no wife, minor child, or minor children, natural born or adopted, surviving him. The petition charges that deceased lost his life by reason of the negligent failure of the defendant to furnish him a reasonably safe place in which to do his work. The suit was brought under sections 5426 and 5427, R. S. 1909. The defendant demurred to the petition, for the reason that it failed to state facts sufficient to constitute a cause of action, in that the administrator failed to allege the name or names of the beneficiaries for whom he sued, and for a failure to allege a state of facts from which the measure of damages in an action brought under these sections could be ascertained. The petition merely alleged that plaintiff was the duly appointed administrator, set out the acts of negligence complained of and the death of the deceased resulting therefrom, and alleged that the estate of the deceased had sustained injury, and the prayREYNOLDS, P. J., and NORTONI, J., the estate of the deceased has been damaged er was as follows: "Wherefore, plaintiff says We have very carefully examined the record, and are unable to see any reversible error therein. The judgment of the circuit court is affirmed. concur. in the sum of seven thousand dollars, for which judgment is prayed." The demurrer to the petition was sustained, and plaintiff JOHNSON V. DIXIE MINING & DEVELOP-electing to stand on his petition has appeal MENT CO. (Springfield Court of Appeals. Missouri. DEATH (§§ 49, 52*)—ACTION FOR NEGLIGENT An administrator, suing under Rev. St. 1909, 88 5426, 5427, authorizing an action for damages for negligent death, and declaring that the damages shall be sued for and recovered by the same parties and in the same manner as provided in section 5425, authorizing an action for negligent death of an employé while managing any locomotive, car, or train, etc., for the negligent death of his intestate, over 21 years old at the time of his death, and leaving no wife or minor children, must allege the names of the beneficiaries for whom he sues, other than the estate, and the facts from which the measure of damages may be ascertained. [Ed. Note.-For other cases, see Death, Cent. Dig. §§ 64-66, 69; Dec. Dig. §§ 49, 52.*] Robertson, P. J., dissenting. ed to this court, contending that an administrator suing under sections 5426 and 5427 does so for the benefit of the estate of the deceased, and is not required to allege the names of the beneficiaries for whom he sues, other than the estate, and is not required to allege facts other than the acts of negligence and the death of the deceased, nor to show the pecuniary loss for which defendant is called upon to answer in damages, except such as would naturally occur to the estate of the deceased. Whatever may have been the holdings under the Damage Act, which was originally passed in 1855 (Rev. St. 1855, c. 51) in this state, through its various amendments, and which is now embodied in sections 5425, 5426, and 5427, R. S. 1909, the law is well settled at the present time that section 5425 is a remedio-penal statute; penal, so far as the defendant is concerned, to the extent of Appeal from Circuit Court, Jasper Coun- $2,000, and any additional amount "in the ty; Joseph D. Perkins, Judge. discretion of the jury which may be sued for and recovered" in a case in which punitive or exemplary damages are alleged and proved; and remedial above that amount to the extent of $10,000. In other words, under section 5425 the defendant is required to pay For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 1907 by making the maximum amount $10,000 and designating the parties and the manner as provided in section 5425. as a penalty at least $2,000, and, in the dis- | ephone Co., 131 Mo. App. 313, 109 S. W. cretion of the jury, any greater sum accord- 1068. Hence section 5427 was amended in ing to the aggravating circumstances; and under this section the plaintiff will be permitted to allege, prove, and recover any necessary pecuniary damage occasioned by the By a strict construction of section 5427 an wrongful act of the defendant to the extent administrator in his suit, after having elimof the amount named in the statute. The inated the various classes who could sue bewidow of the deceased railroad engineer who fore his right would attach, would have no died at his post of duty is compelled to sue one as a beneficiary, because following, in under section 5425, and should not be con- the same provision, we have the clause, "to fined to a recovery only of the penalty given the surviving parties who may be entitled by the statute, but in addition thereto should to sue," and as the only surviving parties be allowed to recover and be compensated who have been named that were entitled to for the same necessary injury or pecuniary sue were those named in the first, second, loss that the widow who sues under sections 5426 and 5427 is allowed. and third clauses the administrator, in orIder to exclude all classes ahead of him, The enabling provisions of the statute, des- would exclude those for whom he would sue. ignating the parties and classes of parties However, for the purpose of deciding this to whom this penal and compensatory case and giving the most liberal construcamount recovered shall go, are always held tion possible, as section 5427 refers by numto be remedial. Boyd v. Railroad, 236 Mo. ber to section 5425, and as section 5425 al54, 139 S. W. 561. The law as announced in lows an administrator to recover for some the case just cited puts at rest many of the one, to wit, those who are entitled to the mooted questions under the statutes and ad- money according to the laws of descent, and dresses itself to the bench and bar of the as the enabling acts designating the parties state as being a sound and sensible solution. to receive the money are remedial and ought, Section 5426 has stood as it is now writ- therefore, be given a liberal construction, we ten since the Damage Act was first enacted think the administrator, under section 5427, in 1855, and section 5427 has been amended would sue for the same parties as he would only to the extent of changing the amount maintain his action for under section 5425, which may be recovered, and from time to namely, where the deceased was an adult, time adding the classes entitled to sue as for the father and mother, brothers and sisthey have been added to section 5425. The ters, etc. In other words, that by referring amount recoverable under sections 5426 and to the class who receive under the laws of 5427 has always been held to be compensa- descents the Legislature intended that the tory damages, and if the two latter sections father and mother, brothers and sisters, etc., be read in connection with the whole act of a deceased adult would be the surviving no other conclusion can be reached than that parties who may be entitled to sue, and that they are intended to give only compensatory he may maintain the suit for this fourth damages. See Proctor v. Railroad, 64 Mo. class under section 5427; and the Legisloc. cit. 119, 120; Schaub v. Railroad, 106 lature meant, under section 5427, that if Mo. 74, 93, 16 S. W. 924; McGowan v. St. there is a father and mother, brothers and Louis Ore & Steel Co., 109 Mo. 518, 531, 19 sisters, or any of these, who have suffered S. W. 199; Hegberg, Adm'r, v. Railroad, 164 a necessary injury-and by necessary injury Mo. App. 514, 551, 147 S. W. 192; Tetherow is meant a pecuniary loss (see Knight v. Lead v. Railway Co., 98 Mo. 74, 86, 11 S. W. 310, & Zinc Co., 75 Mo. App. 541, 547, and cases 14 Am. St. Rep. 617; Boyd v. Railroad, 236 | cited)—then the plaintiff, as administrator, Mo. 54, 88, 139 S. W. 561, and cases cited; Behen v. St. Louis T. Co., 186 Mo. 430, 447, 85 S. W. 346; Hartnett v. United Rys. Co., 162 Mo. App. 554, 558, 142 S. W. 750; Honea V. Railway Co., 245 Mo. 261, 151 S. W. 119, 125, and also page 127. The case of Hawkins v. Smith, 242 Mo. 688, 147 S. W. 1042, as well as a long line of decisions therein cited, holds that there is no new cause of action created in the classes who may bring the suit, but that it is a transmitted right. In 1905 (Laws 1905, p. 135), when the Legislature added the administrator as the fourth class who could sue under section 5425, it failed to amend section 5427, and between 1905 and 1907 (Laws 1907, p. 252) the maximum amount recoverable under sections 5426 and 5427 was $5,000, and could not be recovered by an administrator. Crohn v. Tel acting in the capacity of a trustee for the class named, is entitled to bring the suit provided it can be shown that some one or all of this class is entitled to compensation for a pecuniary loss. The courts of this state have uniformly held that sections 5426 and 5427 are in no sense penal, but purely compensatory. For that reason the husband or wife suing under this section must show the pecuniary loss, and the damages must be pleaded and proved in order to recover; so, also, must the minor child or minor children show a pecuniary loss; and much more so must the father and mother of a minor child. or the father and mother or brothers and sisters of an adult, show this pecuniary loss, because as to the last two classes the presumption of law which attaches to the husband or wife or to the minor children does not obtain. As section 5426 has never been amended, and is what is generally known as the deceased; whereas the minor child of the Lord Campbell's act of our statute, under which the recovery is damages for compensation only, the recent case of Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 192, 196, 57 L. Ed. in discussing Lord Campbell's act with reference to the pecuniary loss, is applicable here. In the opinion of Nortoni, J., in the case of Nicholas v. Kelley, 159 Mo. App. 20, 139 S. W. 248, in discussing the bearing on section 8523, R. S. 1909, of the amendment thereto, viz., "may be recovered as provided by section 5425," it was held that it would not have the effect of changing section 8523 from a damage section to a penal section; so we hold that the amendment of 1907, by providing that the recovery shall be had by the same parties and in the same manner as in section 5425, would not change section 5427 to a penal section, but would leave it, as it has been from the date of its enactment, a section providing for the recovery of compensatory damages. Under this section it would be necessary, in order for the administrator to maintain an action, to show for whom he brought it and wherein they are entitled to be compensated for the necessary injury-pecuniary loss. the deceased could recover only that part of the earnings which he could reasonably expect to receive the benefit of. We cannot believe the Legislature intended to make so liberal a distribution in favor of the collateral kindred under the fourth clause of the statute, when under the other clauses the recipient of the fund is limited strictly to his necessary and pecuniary loss. Besides, if any force is given to the expression in section 5427, "to the surviving parties who may be entitled to sue," neither an estate nor an administrator can be held to be a surviving party entitled to sue; and the most liberal construction that can be given to section 5427, carrying with it the fourth clause, is to hold that if there is any one or more within the class, as designated in section 332, who have suffered necessary pecuniary injury and loss by reason of the wrongful death, then the administrator may maintain such action as a trustee for them, and in order to do so it seems imperative on him to designate the parties who have survived the deceased, and their relationship to the deceased, and facts showing the pecuniary loss they may have sustained, for which the defendant must answer in compensatory damages. The reasons given by Nixon, P. J., in the case of Hegberg v. Railroad, 164 Mo. App. The statutes and decisions of courts of oth514, 147 S. W. 192, in that part of the opin- er states cited by counsel have been exion covered on pages 553 to 559 of 164 Mo. amined, and while probably all the statutes App., pages 206 to 208 of 147 S. W., meet with are based on Lord Campbell's Act there are our entire approval. The opinion in that case none exactly like the Missouri statute-ceris sufficiently clear in its holding that the tainly none where the classes have been addadministrator, under our statute, sues as the ed and the amendments made as in this trustee of an express trust for the benefit of state. It is true the Florida statute was the distributees who are named in section held by a majority of the Supreme Court 332, Rev. St. 1909, in the law of descents and of that state to permit an administrator to distribution. If it should be held that the sue for the benefit of the estate, but the administrator sues for the benefit of the es- statute provides for an injured party, and tate, then the measure of damages accruing not an injured surviving party, and the to the estate would probably be the amount classes who must bring the suit, if living, the jury might find that he would have accu- in preference to the administrator of the mulated over and above his living expenses deceased, include not only those specifically during the time of his expectancy, and the named in our statute, but all dependents as recovery would be for such amount. The well; and by exhausting all of the next of injustice such a construction would lead to kin and all dependents the court held that can be readily seen by comparing the amount under their statute the administrator could an administrator would receive with that sue for the benefit of the estate. There which a minor child would receive for the seems to be a vast difference between a case death of his father. The minor child can presented by an administrator under the recover only such pecuniary loss as he can Florida statute and one presented by an show would be sustained from the time of administrator under our own statute. To the death of his father to his majority; hold that the executor or administrator while should the administrator recover for would recover for the benefit of the estate, the estate, and should the estate, under which recovery he would take into the prothe law of descents, go to a brother, or bate court and distribute under the orders to a deceased brother's child, the broth- of that court, seems to us to be in direct er or nephew, as the case might be, would conflict with the wording of the statute. receive an amount as compensation not If this construction should be placed upon limited to probably a few years, as in it, the next of kin would take subject to the the case of a minor child of the deceased, costs of the probate proceedings, and subbut probably to a long term of years, to wit, ject to the claims of creditors against the to the end of the expectancy of the deceased. estate of the deceased. The statute expressAgain, the brother or nephew, through the ly says that the amount recovered by the to the laws of descents, not according to the laws regulating the administration of the estates of deceased persons. The administrator or executor in this case is by the statute made the trustee of an express trust, as much so as an executor named in a will is a trustee of an express trust of a fund to be handled by him long after the administration of the will is closed in the probate court; and he is no more answerable for the management and distribution of the fund recovered under the statute to the probate court than an executor named as a trustee of an express trust in a will is answerable, so far as that trust is concerned, to the probate court. The question as to the amount each of the beneficiaries would receive on a recovery is not before us, and as to how it would be divided we will not decide until such question is presented to us. It will be noted that as to the second class named in section 5425 there is a failure to provide how the money recovered shall be divided among the minor children, when necessarily, according to their respective ages, some would be entitled to receive more of the recovery than others, yet the courts have permitted judgments to stand without going into the question concerning the proper distribution of the fund between the children. In the case of McGowan v. St. Louis Ore & Steel Co., 109 Mo. 518, 19 S. W. 199, a recovery of $5,000 was allowed to stand, where the suit was brought for four minor children ranging in age from 5 to 16 years. For the reasons herein appearing, we think the action of the trial court in sustaining the demurrer was proper, and the judgment is therefore affirmed. STURGIS, 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 FARRINGTON, 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, R. S. 1909, in the Damage Act as the same now stands. At common law and in the absence of a 1855. Section 5427 provides for and designates the persons to whom and for whose benefit the liability is perpetuated 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 section 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, 41 L. R. A. 385, 68 Am. St. Rep. 554; 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 transmittedthe 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. The 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 be 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 culpa bilstatute, the cause of action, on the one hand, ity on the part of defendant warranting and liability, on the other, growing out of punitive or exemplary damages, which is held personal injuries inflicted upon one person to be included in and warranted by the last by the wrongful act or neglect of anoth- clause of the section, "having regard to the er died with the death of the injured par- mitigating and aggravating circumstances," ty. The sole purpose of section 5426 is to etc. (Boyd v. Railroad, 236 Mo. 54, 93, 139 keep alive and transmit, without saying in S. W. 561), the damages to be recovered unwhom or to whom, the defendant's liability der this section have always been held to be to an action for damages growing out of compensatory only-the pecuniary injury necthe injury inflicted by such wrongful act or essarily resulting from such death. McGowneglect, notwithstanding the same caused or an v. Ore & Steel Co., 109 Mo. 518, 19 S. W, resulted in the death of the injured party. 199; Knight v. Lead & Zinc Co., 75 Mo. App. This section of our statute has never been 541; and the long line of cases cited by changed or amended since its enactment in 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, 36 Am. Rep. 459; 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 of 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 Nicholas 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 suit by the administrator, the 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, 10 Ariz. 162, 85 Pac. 401; Meekin v. Brooklyn Heights R. Co., 164 N. Y. 145, 58 N. E. 50, 51 L. R. A. 235, 79 Am. St. Rep. 635; McCabe v. Light Co., 27 R. I. 272, 61 Atl. 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 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. ROBERTSON, P. J. (dissenting). Plaintiff brought this action in the circuit court, alleging that he is the duly appointed, qualified, and acting administrator of the estate of Arthur Johnson, deceased, and that the said deceased was at the time of his death above the age of 21 years, and left no wife, minor child, or minor children, natural born or adopted, surviving him; that the defendant was at all of the times mentioned in the petition a Missouri corporation, engaged in mining in Jasper county, Mo.; and that by reason of the negligence of the defendant as therein alleged, the said Arthur Johnson received injuries of which he died; and prayed judgment for the sum of $7,000. To this petition the defendant filed its general demurrer, and alleged as ground therefor that the petition did not state facts sufficient to constitute a cause of action against the defendant. The demurrer was sustained, and plaintiff refused to plead further; whereupon the court rendered judgment in favor of the defendant. Plaintiff perfected his appeal to this court, and it is necessary to construe section 5427, R. S. 1909, with reference to the question as to whether or not a cause of action vests in an administrator thereunder, and, if so, then the essentials of the petition based on this section. As the demurrer is general, I shall undertake to confine my consideration of the petition to the objections relied upon by the respondent here, as disclosed by the brief filed in its behalf, which are as follows: "(1) The attempt to authorize an administrator to sue, without providing the benefi |