vision that the jury shall give damages with | he or she fails to sue within six months aftreference to the necessary injury to surviv- er such death, then by the minor child or ors who are entitled to sue, may be void for uncertainty, or by reason of the contradictory provisions which render the statute unenforceable as written.

"(2) There is no presumption of injury to one who is not specifically authorized to sue for the death of another. A petition is not sufficient which does not disclose facts showing how such plaintiff suffered loss by reason of the death.

"The injured survivor sues through the administrator as a trustee, rather than as an administrator.

"The use of the word 'surviving' in section 5427 to qualify 'parties who may be entitled to sue' is inconsistent with the idea that a cause of action is given to the general estate of the deceased.

"A recovery in behalf of the general estate of deceased would inure to the benefit of creditors. The word 'survivor' would not include creditors."

At common law "the death of a human being could not be complained of as an injury." This condition brought forth the adoption in England in 1846 of what is commonly known as "Lord Campbell's Act," under the title of "An act for compensating the families of persons killed by accident." It provided that the action should be brought in the name of the executor or administrator of the deceased, and for the wife, husband, parent, and child of the deceased; the jury to find and direct the distribution of the recovery. In 1864 there was an amendment of this act, authorizing the beneficiaries to bring the action, when there was no executor or administrator to sue. It appears that the holding has been, under that act, that a new cause of action is created, and otherwise it is materially different from our Damage Act.

children of the deceased; or, third, if such deceased be a minor and unmarried, then by the father and mother, who may foin in the suit, and each shall have an equal interest in the judgment; or, if either of them be dead, then by the survivor."

In 1885 (Session Laws 1885, pp. 153, 154) the Legislature amended the second section so as to include legally adopted children. In 1905 (Session Laws 1905, pp. 135-137) the second section of the act (section 5425) was amended by adding thereto the fourth subdivision, giving the right of recovery to the administrator or. executor of the deceased, when the individuals named in the first three subdivisions do not exist, and providing that "the amount recovered shall be distributed according to the laws of descent." No change was made at that time in the fourth section of the act, now section 5427, and it was thereafter held, in the case of Crohn v. Kansas City Home Telephone Co., 131 Mo. App. 313, 109 S. W. 1068, that as it referred to the old section as it read before the amendment of 1905 no suit could be maintained thereunder by the administrator. The Legislature, in 1907, re-enacted the fourth section with appropriate reference to the second section, thereby connecting them as they now stand.

That an action based on these provisions of our statute is not a new cause, but a transmitted one, appears to be settled in this state. Proctor v. Hannibal & St. Joe R. Co., 64 Mo. 112, 121; White v. Maxcy, 64 Mo. 552, 558; Gray v. McDonald, 104 Mo. 303, 311, 16 S. W. 398; Hennessy v. Bavarian Brewing Co., 145 Mo. 104, 112, 46 S. W. 966, 41 L. R. A. 385, 68 Am. St. Rep. 554; Strottman v. Railroad, 211 Mo. 227, 255, 109 S. W. 769.

It will be observed that section 5427 proIt has often been stated by the courts of vides that the damages accruing under secthis country that Lord Campbell's Act is the tion 5426 "shall be sued for and recovered initiative of this class of legislation and by the same parties and in the same manthe suggestion for all subsequent acts of a ner as provided in section 5425," and that similar nature; but, however that may be, the damages shall be ascertained "with refthe sections of the Missouri statute out of erence to the necessary injury resulting from which the present sections 5425, 5426, and such death, to the surviving parties who 5427 evolved were first adopted in 1855 un- may be entitled to sue," so that it becomes der the title of "An act for the better secur- necessary to consider section 5425 with refity of life, property and character," being erence to who are the surviving parties dessections 2, 3, and 4 (R. S. 1855, pp. 647, 648, ignated therein as being entitled to maintain 649). Sections 5426 and 5427 are in the ex- the suit. It will be seen that there are four act language of sections 3 and 4 of the origi- classes, three of which are the immediate, nal act, except that in section 5427 (original-dependent relatives of the deceased, and the ly section 4) the reference to the preceding fourth is the administrator or executor, in sections has been changed to conform to the present section numbers, and the amount of recovery allowed has been enlarged from $5,000 to $10,000.

Section 2, now section 5425, when first enacted, allowed recovery as follows: "First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or

the event of the absence of the three previously mentioned classes. Looking at the sections from this position, the question first arises as to whether or not an administrator or an executor is a "surviving party," within the meaning of that term as used in section 5427, and in this connection it is observed that the expression "to the surviv

property, the character of his business, and the prospect of increase of wealth likely to accrue to a man of his age with the business and means which he had, and also that there was a probability and the chance of business that the deceased's estate might have decreased, rather than have increased, and that consideration should be given to the possibility and also the probability that the deceased might marry, and his property descend into another channel.

ing parties" is not unqualified, nor to be | mitted cause, that the cause of action which taken in the ordinary and usually accepted might have been maintained by the deceased, application of that expression, but it is mod- in the event he had lived, should be transified by the words, "who may be entitled to mitted to the administrator of his estate, sue," thus demonstrating, I think, that when and that the administrator should recover administrators and executors were desig- damages, as stated in the case of Illinois nated as parties who were entitled to sue Central Railroad Co. v. Barron, 72 U. S. (5 that then they were, within the meaning of Wall.) 106, 18 L. Ed. 591, taking into consection 5427, "surviving parties," as they sideration all of the circumstances attending are, under section 5425, entitled to sue. the death, the relations between the deceasIf statutes can be consistently reconcil-ed and his next of kin, the amount of his ed, such construction must be adhered to as will give vitality to every portion thereof, and such as will not destroy the legislative intent. It must be remembered that after section 5425 had been amended so as to authorize administrators and executors to sue under certain contingencies, and after the Kansas City Court of Appeals had held that the provisions of that section in that respect did not thereby come within the provisions of section 5427, it was amended by the Legislature, as above pointed out, with the evident intent and purpose of extending the right theretofore transmitted to certain parties to the executors and administrators, if the parties mentioned in the first three provisions of section 5425 did not exist. This construction gives section 5427 a meaning which, in the case now before us, would be equivalent to saying that the administrator or executor, as the representative of the estate of the deceased, and the person to whom is transmitted the cause of action deceased would have had if he had survived, should be given such damage, not exceeding $10,000, as the jury might deem fair and just with reference to the necessary injury resulting from such death to the administrator or executor as such representative. The administrator or executor is the legal representative of the estate of the deceased, and the damages are not allowed to him personally, but to him officially as such administrator or executor. The suit is authorized to be brought by him in his official capacity as a representative of the estate, and the damages accrue to him by reason of the statute and the position he holds. The laws governing the administration of estates make it his right and duty to reduce to his possession the personal property and assets of the decedent's estate, including, in this instance, the value of the right of action transmitted to him by virtue of the statute. Jacksonville El. Co. v. Bowden, 54 Fla. 461, 45 South. 755, 15 L. R. A. (N. S.) 451.

The majority opinion in this case, in my judgment, partially recognizes the theory for which I contend in the construction of this statute and partially repudiates it. Their opinion holds, as I understand it, that the administrator sues in the nature of a trustee of an express trust, representing certain descendants of the deceased, and limiting, in my opinion, the intent and purpose of the statute, and reading therein that the administrator does not represent the estate of the deceased, as is provided for and contemplated under the general administration act, and segregates and eliminates certain kin of the deceased who, with those they include, have no legal claim directly against the deceased, had he survived. The first three subdivisions exhaust the entire class of relatives who have any direct, legal claim on a deceased, and all others can legally derive a pecuniary benefit from the life of the party, during his life, by reason of some voluntary act on his part, and after his death such parties can establish no legal claim on account of an action transmitted, except by virtue of the laws of descent and distribution worked out under the laws of administration.

In the first three subdivisions of section 5425 certain persons are designated who may bring the suit in their own behalf, but wher we consider the fourth subdivision we find that the right of action, when the three previous classes are eliminated, vests in the administrator or executor; and since, under the statute, the administrator and executor In construing the effect of the amendment can only represent the estate of the deceased, which added the word "administrator" to that being their sole duty under the adminthe Damage Act, I think it is important not istration laws, I think it would result prac to overlook the fact that the first three sub-tically in a judicial repeal of the fourth divisions of the second section entirely ex-subdivision of that section to construe it as haust the legal dependent classes; and I meaning that the action cannot be maintainthink the Legislature intended exactly what ed for the benefit of the estate. The mait said, in view of the construction of the jority opinions hold that under certain posSupreme Court of this state that the cause sible contingencies a cause of action may be

individuals not named in the second section. [ Supreme Court in the Murphy and Boyd CasEntertaining the views as above expressed es, supra, and request that this case be cerit necessarily follows that I am of the opin- tified to the Supreme Court. ion that it is not essential in a cause of action of the character involved here, any more than it is necessary in any action by an administrator for the benefit of the estate, to allege the names of the beneficiaries. think the petition in this case states a cause of action, and that the judgment of the circuit court should be reversed and the cause remanded, with directions to set aside its judgment and to overrule the defendant's demurrer.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

class is composed of the mayor and members | city council of Poplar Bluff issued the liof the council, the mayor being ex officio cense to the relator. president. R. S. 1909, § 9149.

By reference to the report of the case of State ex rel. Smith v. Berryman et al., supra, it will be seen that the Springfield Court of Appeals held, on the authority of City of St. Louis v. Boatmen's Ins. & Trust Co., 47

Plaintiff, claiming that on presentation of this license from the county court and payment of the license tax, he was entitled to open and conduct a saloon in Poplar Bluff, and that the city council had no authority | Mo. 150, City of St. Charles v. Elsner, 155 to refuse him, and that their duty in the premises was merely ministerial, on the refusal of the city council to permit him to open a dramshop, petitioned the Springfield Court of Appeals, within the jurisdiction of which court Butler county is situate, for a writ of mandamus commanding the city council to set aside the order refusing him a cense to conduct a dramshop and to grant an order issuing to him a license to keep a dramshop at the place mentioned for a period of six months. An alternative writ of mandamus was issued by the Springfield | judicial. Court of Appeals, directed to the mayor and council of the city. The mayor and council made return to the alternative writ, justifying their refusal under the city ordinance, the return also setting out that the petition for the dramshop did not purport to be signed by two-thirds majority of the assessed, tax paying citizens and guardians of minors owning property in the square where the dramshop was desired, and that the relator had not brought himself under the provisions of the city ordinances, further setting up that the place at which it was proposed to open the dramshop was not a permanent building and that the city had enacted an ordinance defining fire limits within the corporation and that the place selected and designated by relator for the purpose of carrying on his proposed dramshop was within these fire limits and that the city council had passed an ordinance ordering the removal of the building as being a nuisance. On the cause coming up for hearing in the Springfield Court of Appeals, trial on the issues of fact was avoided by an agreement that the relator was a law abiding, assessed, tax paying citizen of Butler county but not of Poplar Bluff; that his petition presented to the city council contained the names of two-thirds majority of the assessed, tax payments to be used in and about the prosecuing citizens, including guardians of minors owning property in the square where the dramshop license was desired. This left the case on an issue of law, the relator raising that by a motion for peremptory mandamus, notwithstanding the return. The cause being heard by the Springfield Court of Appeals on the petition, return and motion for judgment on that return, the court made the alternative writ final, issuing a peremptory mandamus as prayed. The opinion of the Springfield Court of Appeals will be found under the title State ex rel. Smith v. Berryman et al., 142 Mo. App. 373, 127 S. W. 129. In obedience to the command of the per

Mo. 671, 56 S. W. 291, and other authorities cited, that the sections of the city ordinances relied upon by respondent were in conflict with section 9253, R. S. 1909, which prescribes the powers of the city council of cities of the third class, and that when the county court had issued the license and reli-lator had tendered the license fee, it was the duty of the city council to issue the license; that that body had no power to deny or refuse it and that its duty in connection with the matter was purely ministerial and not

On the conclusion of proceedings under and incident to the mandamus, the relator in that proceeding commenced the present action against the mayor and city council of Poplar Bluff. Charging that the acts of the mayor and council, in refusing the license, were unlawful and oppressive and that by reason of plaintiff being required to resort to the mandamus proceeding to compel performance of a ministerial duty, he had been forced to pay and to obligate himself to pay, and that he did pay and obligate himself to pay, large sums of money to attorneys for their services in and about the prosecution of the mandamus proceeding; that he was compelled to pay and did pay large sums of money in his own traveling expenses as well as those of his attorneys in looking after and prosecuting those proceedings; that he was compelled to pay and did pay, large sums of money for stenographer's fees for services in preparing papers and briefs and other documents to be used in the prosecution of those proceedings, and to pay large sums for telephone messages and telegrams in and about the prosecution of that proceeding, and to pay docket fees and other court costs, and to pay large sums for the printing of briefs, records and other docu

tion of the mandamus, and had paid out large sums of money for express charges on briefs and other documents and was compelled to pay and did pay large sums of money to various persons for clerical work in preparing records and documents, and that he was greatly damaged in his business and reputation as a dramshop keeper, and that he lost large sums of money by reason of loss of patronage, in this as well as other dramshops owned by plaintiff, which loss, it is averred, was occasioned by his having to resort to legal process to compel the performance of the duties of defendants as mayor and members of the city council, as before