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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 children of the deceased; or, third, if such uncertainty, or by reason of the contradic- deceased be a minor and unmarried, then by tory provisions which render the statute un- the father and mother, who may join in the enforceable as written.

suit, and each shall have an equal interest "(2) There is no presumption of injury to in the judgment; or, if either of them be one who is not specifically authorized to sue dead, then by the survivor." for the death of another. A petition is not In 1885 (Session Laws 1885, pp. 153, 154) sufficient which does not disclose facts show the Legislature amended the second section ing how such plaintiff suffered loss by rea- so as to include legally adopted children. In son of the death.

1905 (Session Laws 1905, pp. 135–137) the "The injured survivor sues through the second section of the act (section 5425) was administrator as a trustee, rather than as amended by adding thereto the fourth suban administrator.

division, giving the right of recovery to "The use of the word 'surviving' in section the administrator or. executor of the deceas5427 to qualify ‘parties who may be entitled ed, when the individuals named in the first to sue' is inconsistent with the idea that a three subdivisions do not exist, and providcause of action is given to the general es- ing that “the amount recovered shall be distate of the deceased.

tributed according to the laws of descent." "A recovery in behalf of the general es- No change was made at that time in the tate of deceased would inure to the benefit fourth section of the act, now section 5427, of creditors. The word 'survivor would not and it was thereafter held, in the case of include creditors."

Crohn v. Kansas City Home Telephone Co., At common law “the death of a human 131 Mo. App. 313, 109 S. W. 1068, that as being could not be complained of as an in- it referred to the old section as it read be jury." This condition brought forth the fore the amendment of 1905 no suit could be adoption in England in 1846 of what is com- maintained thereunder by the administrator. monly known as "Lord Campbell's Act,” un- The Legislature, in 1907, re-enacted the der the title of "An act for compensating the fourth section with appropriate reference to families of persons killed by accident." It the second section, thereby connecting them provided that the action should be brought as they now stand. in the name of the executor or administrator That an action based on these provisions of the deceased, and for the wife, husband, of our statute is not a new cause, but a parent, and child of the deceased; the jury transmitted one, appears to be settled in this to find and direct the distribution of the re- state. Proctor v. Hannibal & St. Joe R. Co., covery. In 1864 there was an amendment of 64 Mo. 112, 121 ; White v. Maxcy, 64 Mo. this act, authorizing the beneficiaries to 552, 558; Gray v. McDonald, 104 Mo. 303, bring the action, when there was no execu- 311, 16 S. W. 398; Hennessy V. Bavarian tor or administrator to sue. It appears that Brewing Co., 115 Mo. 104, 112, 46 S. W. 966, the holding has been, under that act, that 41 L. R. A. 385, 68 Am. St. Rep. 554; Strotta new cause of action is created, and other man v. Railroad, 211 Mo. 227, 255, 109 S. wise it is materially different from our Dam-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 the event of the absence of the three prepresent section numbers, and the amount | viously mentioned classes. Looking at the of recovery allowed has been enlarged from sections from this position, the question first $5,000 to $10,000.

arises as to whether or not an administrator Section 2, now section 5425, when first en- or an executor is a "surviving party,” with. acted, allowed recovery as follows: "First, in the meaning of that term as used in secby the husband or wife of the deceased; or, tion 5427, and in this connection it is obsecond, if there be no husband or wife, or served that the expression “to the surviv.

age Act.

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 deceas

If statutes can be consistently reconciled and his next of kin, the amount of his ed, such construction must be adhered to property, the character of his business, and as will give vitality to every portion thereof, the prospect of increase of wealth likely to and such as will not destroy the legislative accrue to a man of his age with the business intent. It must be remembered that after and means which he had, and also that there section 5425 had been amended so as to au- was a probability and the chance of business thorize administrators and executors to sue that the deceased's estate might have deunder certain contingencies, and after the creased, rather than have increased, and that Kansas City Court of Appeals had held that consideration should be given to the possithe provisions of that section in that respect bility and also the probability that the dedid not thereby come within the provisions ceased might marry, and his property deof section 5427, it was amended by the Leg- scend into another channel. islature, as above pointed out, with the evi- The majority opinion in this case, in my dent intent and purpose of extending the judgment, partially recognizes the theory for right theretofore transmitted to certain par- which I contend in the construction of this ties to the executors and administrators, if statute and partially repudiates it. Their the parties mentioned in the first three pro- opinion holds, as I understand it, that the visions of section 5425 did not exist. This administrator sues in the nature of a trusconstruction gives section 5427 a meaning tee of an express trust, representing certain which, in the case now before us, would be descendants of the deceased, and limiting, in equivalent to saying that the administrator my opinion, the intent and purpose of the or executor, as the representative of the es- statute, and reading therein that the admintate of the deceased, and the person to whom istrator does not represent the estate of the is transmitted the cause of action deceased deceased, as is provided for and contemplatwould have had if he had survived, should ed under the general administration act, and be given such damage, not exceeding $10,- segregates and eliminates certain kin of the 000, as the jury might deem fair and just deceased who, with those they include, have with reference to the necessary injury re- no legal claim directly against the deceased, sulting from such death to the administra- had he survived. The first three subdivisions tor or executor as such representative. The exhaust the entire class of relatives who administrator or executor is the legal repre- have any direct, legal claim on a deceased, sentative of the estate of the deceased, and and all others can legally derive a pecuniary the damages are not allowed to him person- benefit from the life of the party, during his ally, but to him officially as such administra- life, by reason of some voluntary act on his tor or executor. The suit is authorized to be part, and after his death such parties can brought by him in his official capacity as a establish no legal claim on account of an ac. representative of the estate, and the damages tion transmitted, except by virtue of the accrue to him by reason of the statute and laws of descent and distribution worked out the position he holds. The laws governing under the laws of administration. the administration of estates make it his In the first three subdivisions of section right and duty to reduce to his possession 5425 certain persons are designated who may the personal property and assets of the de bring the suit in their own behalf, but when cedent's estate, including, in this instance, we consider the fourth subdivision we findi the value of the right of action transmitted that the right of action, when the three preto him by virtue of the statute. Jacksonville vious classes are eliminated, vests in the ad. El. Co. v. Bowden, 54 Fla. 461, 45 South. 755, ministrator or executor; and since, under 15 L. R. A. (N. S.) 451.

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 notistration 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 whated for the benefit of the estate.

The ma it 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 Cas

Entertaining 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

SMITH V. BERRYMAN et al. allege the names of the beneficiaries. I (St. Louis Court of Appeals. Missouri. think the petition in this case states a cause

April 8, 1913.) of action, and that the judgment of the cir- 1. MANDAMUS ($ 177*)-AWARD OF DAMAGES. cuit court should be reversed and the cause Rev. St. 1909, $2551, provides that in remanded, with directions to set aside its càse a verdict be found for the person suing judgment and to overrule the defendant's for him on demurrer, or by nil dicit, or for

out a writ of mandamus, or judgment be given demurrer.

want of replication or other pleading, he shall In my opinion the case of Murphy v. Rail- | recover his damages and costs, "in such man. road, 228 Mo. 56, 87, 128 S. W. 481, concedes per as he might do in a civil action for a false

return," and the same may be levied by exethe construction of this section of our stat-cution. Section 2554 provides that, if any ute to the effect that the cause of action sur-damages be recovered under the article against vives to the administrator as the representa- any person making return to such writ, he shall tive of the estate of the deceased under the making such return; and section 2549 provides

not be liable to be sued in any other action for conditions existing in this case, because the that such further proceedings shall be had in opinion in that case, although an action un- a mandamus proceeding, upon reply or demur. der the second section of our Damage Act, rer, etc., "and in such manner as might be had discusses the question as to whether or not if the person suing out such writ had brought

a civil action for false return. Held that, the said section is entirely penal or partially where the return was only challenged by a penal and partially compensatory; and motion for judgment on the petition and reJudge Lamm assumes, I think, that the sec- turn, which operated as a demurrer to the legal ond section contemplates an element of com- recovered under the statute by the person su

sufficiency of the return, damages could not be pensation which is transmitted to the admin-ing out the writ. istrator, wherein he states that “then the [Ed. Note.-For other cases, see Mandamus, jury had the facts before them from which Cent. Dig. § 395; Dec. Dig. S'177.*] they could reasonably infer the worth of 2. PLEADING (8. 189*)—“PLEA”-“PLEADING" the man as a citizen," which is contrary to

-“DEMURRER. the theory on which the majority opinions a "demurrer," which implies merely a refusal

A "plea" or "pleading" is not the same as proceed in the case at bar. The Murphy to plead. Case was an action by an administrator ; (Ed. Note.-For other cases, see Pleading, and, while it is true in that case the deceas-Cent. Dig. § 400; Dec, Dig. § 189.* ed left an adult son surviving, there was no

For other definitions, see Words and Phrases, notice taken of that fact, and the court in al. 2. pp. 1982–1985; vol. 6, pp. 5405, 5406,

5409-5411; vol. 8, p. 7756.) approving the above statement necessarily 3. ELECTION OF REMEDIES (8 3*)—ALTERNApresupposed that the cause of action vested in

TIVE REMEDIES-NONPERFORMANCE OF DUTY. the administrator as such, and not by reason One who resorted to mandamus to compel or by virtue of the survival of any designat- the officers to discharge a ministerial official ed relative, and with this also the majority them for failure to perform such duty.

duty thereby lost his right of action against opinion is in conflict.

[Ed. Note.-For other cases, see Election of In the case of Boyd v. Railroad, 236 Mo. Remedies, Cent. Dig. 88 3, 4; Dec. Dig. $ 3.*] 54, 139 S. W. 561, it is said, in construing the second section of the Damage Act rela

Appeal from Circuit Court, Iron County;

E. M. Dearing, Judge. tive to the introduction of testimony con

Action by William A. Smith against John cerning the probable pecuniary loss involved that: “If the victim left no wife, husband, ment for plaintiff

, defendants appeal. Re

W. Berryman and others. From a judgor child, the jury, within the limits of that discretion, ought to be permitted to consider versed, and case certified to the Supreme

Court. the fact that the amount recovered will go to collateral kindred of the deceased, who Poplar Bluff, in Butler county, this state, had no claim upon his bounty or support." is a city of the third class. Plaintiff, reIn that case the Supreme Court was consid- spondent here, filed an application and petiering the question of pecuniary loss, and I tion in the office of the city clerk, for a lltake it that the statement of that court is cense to conduct a dramshop in a building directly in point in this case, and is ignored on a certain lot in that city. Later the counby the opinions of the majority because it ty court of Butler county granted plaintiff a wholly explodes the theory of the majority license to keep a dramshop. Plaintiff thereopinions in this case that the amount which upon paid to the city the amount required may be recovered is confined exclusively to by the city ordinance for a dramshop license. others than collateral kindred.

Plaintiff's petition being presented to the I deem the opinions of the majority in city council, that body refused the license. this case contrary to the decisions of the The governing body of cities of the third •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexas

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elass 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 Plaintiff, claiming that on presentation of State ex rel. Smith v. Berryman et al., suthis license from the county court and pay- pra, it will be seen that the Springfield Court ment of the license tas, he was entitled to of Appeals held, on the authority of City of open and conduct a saloon in Poplar Bluff, St. Louis v. Boatmen's Ins. & Trust Co., 47 and that the city council had no authority Mo. 150, City of St. Charles v. Elsner, 1585 to refuse him, and that their duty in the Mo. 671, 56 S. W. 291, and other authorities premises was merely ministerial,' on the re- cited, that the sections of the city ordinances fusal of the city council to permit him to relied upon by respondent were in conflict open a dramshop, petitioned the Springfield with section 9253, R. S. 1909, which preCourt of Appeals, within the jurisdiction of scribes the powers of the city council of which court Butler county is situate, for a cities of the third class, and that when the writ of mandamus commanding the city coun- county court had issued the license and recil to set aside the order refusing him a li-lator had tendered the license fee, it was the cense to conduct a dramshop and to grant duty of the city council to issue the license; an order issuing to him a license to keep a that that body had no power to deny or redramshop at the place mentioned for a pe- fuse it and that its duty in connection with riod of six months. An alternative writ of the matter was purely ministerial and not mandamus was issued by the Springfield judicial. Court of Appeals, directed to the mayor and On the conclusion of proceedings under council of the city. The mayor and council and incident to the mandamus, the relator made return to the alternative writ, justify- in that proceeding commenced the present ing their refusal under the city ordinance, action against the mayor and city council the return also setting out that the petition of Poplar Bluff. Charging that the acts of for the dramshop did not purport to be sign- the mayor and council, in refusing the li. ed by two-thirds majority of the assessed, cense, were unlawful and oppressive and tas paying citizens and guardians of minors that by reason of plaintiff being required to owning property in the square where the resort to the mandamus proceeding to comdramshop was desired, and that the relator pel performance of a ministerial duty, he had not brought himself under the provi- had been forced to pay and to obligate himsions of the city ordinances, further setting self to pay, and that he did pay and obliup that the place at which it was proposed gate himself to pay, large sums of money to to open the dramshop was not a permanent attorneys for their services in and about the building and that the city had enacted an or- prosecution of the mandamus proceeding; dinance defining fire limits within the cor- that he was compelled to pay and did pay poration and that the place selected and des- large sums of money in his own traveling exignated by relator for the purpose of car- penses as well as those of his attorneys in rying on his proposed dramshop was within looking after and prosecuting those proceedthese fire limits and that the city council ings; that he was compelled to pay and did bad passed an ordinance ordering the re- pay, large sums of money for stenographer's moral of the building as being a nuisance. fees for services in preparing papers and On the cause coming up for hearing in the briefs and other documents to be used in the Springfield Court of Appeals, trial on the is- prosecution of those proceedings, and to pay sues of fact was avoided by an agreement large sums for telephone messages and telethat the relator was a law abiding, assessed, grams in and about the prosecution of that tax paying citizen of Butler county but not proceeding, and to pay docket fees and other of Poplar Bluff; that his petition presented court costs, and to pay large sums for the to the city council contained the names of printing of briefs, records and other docutwo-thirds majority of the assessed, tax payments to be used in and about the prosecuing citizens, including guardians of minors tion of the mandamus, and had paid out owning property in the square where the large sums of money for express charges on dramshop license was desired. This left the briefs and other documents and was comcase on an issue of law, the relator raising pelled to pay and did pay large sums of money that by a motion for peremptory mandamus, to various persons for clerical work in prenotwithstanding the return. The cause be- paring records and documents, and that he ing heard by the Springfield Court of Ap- was greatly damaged in his business and peals on the petition, return and motion for reputation as a dramshop keeper, and that judgment on that return, the court made the he lost large sums of money by reason of alternative writ final, issuing a peremptory loss of patronage, in this as well as other mandamus as prayed. The opinion of the dramshops owned by plaintiff, which loss, it Springfield Court of Appeals will be found is averred, was occasioned by his having to under the title State ex rel. Smith v. Berry- resort to legal process to compel the perman et al., 142 Mo. App. 373, 127 S. W. 129. formance of the duties of defendants as may

In obedience to the command of the per- or and members of the city council, as before

damage were, as he alleges, in the sum of certified copy of a paper offered in evidence, $5,000, and all occasioned by the unlawful, not exceeding $1.25, in all not exceeding illegal and oppressive acts of defendants, as $335.05, and that in determining for what mayor and members of the city council, items the jury would allow damages to plainplaintiff prays judgment for this amount as tiff, they should allow only such items of also for the further sum of $10,000, as puni- expense above mentioned as they might find tive or exemplary damages, and for his and believe were necessarily and properly costs.

expended or incurred by plaintiff in and It is as well to notice here that there was about the prosecution of the mandamus proa motion to strike out portions of the pe- ceeding in the Springfield Court of Appeals tition, which was overruled, defendants ex- for the purpose of compelling defendants to cepting. Filing an answer, defendants, after issue to plaintiff a license to keep a drama general denial, pleading that there was a shop on a lot designated. misjoinder of defendants and nonjoinder of At the instance of defendants the court parties defendant; that the mayor, John W. instructed the jury that in allowing plainBerryman, was not a proper party to the tiff any of these items, they were not bound suit; that the councilmen had acted in good by the testimony as to the amount alleged faith in refusing to grant a license to plain to have been paid by plaintiff or as to the tiff for the reason that at the time of his ap- reasonableness of the amounts as testified to, plication there was a bill pending before but were to allow such amount as they bethe council to condemn the building. It is lieved to be reasonable under all the circumfurther set up in the answer that plaintiff is stances. precluded and estopped from claiming any

Defendants also asked the court to instruct damages by reason of the mandamus pro- the jury that they could not allow anything ceeding instituted and prosecuted by him to to plaintiff on account of attorney's fee or a final determination in the Springfield Court for printing briefs in the mandamus case. of Appeals, which judgment in the manda The court refusing to so instruct, defendmus proceeding is pleaded in bar of all ants excepted. claims for damages on the part of plaintiff.

The jury returned a verdict in favor of A reply in the nature of a general denial plaintiff for $150, judgment following for was filed to this answer.

this amount and for costs. Defendants inAt the trial plaintiff abandoned his claim terposed a motion for new trial as well as in for punitive damages, the evidence introduc-arrest, the latter on the ground that the petied by plaintiff, aside from putting in evi- tion in the case did not state any cause of dence the mandamus proceedings, being con- action, and on the further ground that the fined to the reasonable value of the expend- record is erroneous on its face. Those moitures mentioned, all testimony as to these tions being overruled, saving exceptions to items of damage being introduced over the that action, defendants perfected their apobjection of defendants that none of them peal to this court. were proper items of damage in this proceed David lill, of Poplar Bluff, for appellants. ing, and under the objection of defendants N. A. Mozley, of Bloomfield, and E. A. Green, to any evidence on the ground that the pe- of Poplar Bluff, for respondent tition did not state any cause of action.

At the conclusion of the introduction of REYNOLDS, P. J. (after stating the facts evidence in chief by plaintiff, defendants in- as above). [1] The most carefully considerterposed a demurrer to the effect that under ed opinion in connection with mandamus that the law and evidence plaintiff could not re- we have found in the reports of any of our cover and the verdict of the jury must be appellate courts, is an opinion by Judge for defendants. This was overruled, defend- Lewis, speaking for this court, in State ex ants excepting. Defendants introduced evi- rel. Alexander V. Ryan, 2 Mo. App. 303. dence tending to cut down the value of the That opinion was concurred in by Judge services of the attorney and the reasonable- Thomas T. Gantt, then a member of this ness of the expenditures.

court, the other member, Judge Bakewell, At the conclusion of the testimony in the not sitting. Our statute relating to mandacase, defendants again demurred, or, more mus has not been changed with respect to accurately, asked an instruction in the na- any matters here involved from that in ture of a demurrer to the evidence.

force at the time of the delivery of the opinAt the instance of plaintiff the court in- ion by Judge Lewis in the Ryan Case. structed the jury that under the pleadings will be noted that the mandamus here under and evidence they should find for plaintiff consideration went off on a motion for judgand assess his damages at such sum as they ment on, practically, a demurrer to, the remight find from the evidence would fairly turn. That was the situation in the Ryan compensate him for a reasonable attorney's Case, respondent there filing an answer in fee, not exceeding the sum of $300, the print- the nature of a return to the alternative writ ing of briefs and express thereon, not to ex- which had issued, as here, to which relator, ceed in any event the sum of $27.80, railroad as was done here, demurred. The trial court fare expended by his attorney, not exceeding overruled the demurrer, judgment following the sum of $6, the expense of procuring a denying the writ. From this relator appeal.

It

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