author: COIL, Commissioner. PER CURIAM.

text:
    Mildred C. HORNBERGER, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.
    No. 48532.
    Supreme Court of Missouri, Division No. 1.
    Jan. 8, 1962.
    Motion for Rehearing or for Transfer to Court en Banc Denied Feb. 12, 1962.

      V. James Ruddy, St. Louis, for appellant.
    Morris A. Shenker, St. Louis, John E. Bardgett, Clayton, Douglas O’Neill, St. Louis, for respondent.
   COIL, Commissioner.

Mildred Hornberger, plaintiff below, claimed damages for alleged personal injuries in an action against St. Louis Public Service Company and Ernest English. A jury awarded her $35,000 against the company and decided for defendant English. Upon plaintiff’s compliance with a conditional order of remittitur, company’s new trial motion was overruled and a judgment for $17,500 entered from which the company has appealed. Plaintiff submitted her case on res ipsa loquitur against the company and on specific negligence against English. (“Defendant” hereinafter will refer to the St. Louis Public Service Company.)

Defendant contends the trial court erred in giving res ipsa instruction 6 for the reason that plaintiff’s evidence was such that an inference that the collision was not the fault of defendant was as reasonable as an inference that it was.

About 9:30 in the morning of December 8, 1958, plaintiff was a passenger on defendant’s bus westbound on Florissant Road. She testified that she sat in the middle of the long rear seat which extended the width of the bus; that at some point shortly prior to a collision she noticed the driver of the bus extend his hand toward or place it upon and look down at the money box; that the bus swerved to the right, throwing her off the seat against the edge or side of the lengthwise seat just ahead; that her back struck against the front edge of the long seat and her knee struck the edge of the other seat, and that she was wedged between the two seats with her head resting against the back of the long seat; that she heard a collision which “hitched” her backward, and when that happened she couldn’t get up until she was assisted by other persons. The bus came to a stop with its front just west of and most of it under the Wabash Railway overpass at Florissant Road. Plaintiff testified further that as the bus approached downhill to the overpass it was in the inside westbound lane but after it swerved and came to a stop it was in the outside westbound lane; that there had been a freezing rain falling and there was a little “sheet of ice” at the time of the accident; and that as the bus drove off after the accident she saw the automobile with which it had collided which was then on West Florissant’s north shoulder.

Two bus passengers testified for plaintiff. One said she was reading the paper and heard someone say that the bus was going to hit a car; she heard a crash and saw that a car had been hit in front of the bus; that there was a lady wedged down between the seats in the rear and other ladies were trying to pick her up. The other, who was sitting on the back seat with plaintiff and another, said that all of a sudden the bus made a swerve and threw her over and she caught the seat in front of her; that the lady other than plaintiff sitting on the back seat was pitched into the aisle, and the plaintiff fell to the side; that she heard the screech of the bus; and that plaintiff was complaining of her back and asked for help and they assisted her.

Plaintiff read in evidence as admissions against interest certain answers given by defendant English in a deposition. Those answers in substance were that he was involved in a collision with a bus on December 8, 1958, on Florissant Road near the overpass; that he was driving an automobile eastwardly on Florissant and got across the center line onto the westbound portion of the road before the accident and was on the wrong side of the road at the time of impact.

As we understand it, defendant concedes that plaintiff properly could have submitted her case under the res ipsa loquitur doctrine but for the fact that she adduced as part of her case the admissions of codefendant English above noted. To support the contention that those admissions repelled any inference of negligence on the part of defendant’s bus operator or, at least, showed a state of affairs justifying a reasonable inference that the accident was due to a cause other than its negligence, defendant relies upon Niklas v. Metz, 359 Mo. 601, 222 S.W.2d 795. In that case the court correctly held that plaintiff’s evidence “demonstrated, so as to leave no room for inferences to the contrary, that the bus operator exercised the highest degree of care and was not guilty of any negligence proximately concurring to cause the collision and' death.” 222 S.W.2d 797. In the Niklas case a bus and a truck were approaching from opposite directions. Plaintiff was a bus passenger and her evidence showed that when the bus driver saw the truck 300 to 350 feet away approaching astride the center line around a sweeping curve, he turned the bus to the right and, after the bus was off the pavement except for the left rear wheel, the truck struck the rear one third of the bus, tearing out its side and rear. The truck’s tracks began at the center line of the pavement and extended across the west side of the pavement for 45 feet to the bus “as it was almost stopped and almost entirely off the pavement on its right side of the highway.” It was upon those facts that the court reached the conclusion above quoted.

In Long v. St. Louis Public Service Co., Mo.App., 288 S.W.2d 417, the court recognized the proposition stated in the Niklas ■case, supra, that “no recovery can be had where a plaintiff, after making a prima facie case under the res ipsa loquitur doctrine, goes further and produces evidence which repels any inference of negligence on the part of the operator of the vehicle involved in the accident. Niklas v. Metz, 359 Mo. 601, 222 S.W.2d 795; Heidt v. People’s Motorbus Co. of St. Louis, 219 Mo.App. 683, 284 S.W. 840.” 288 S.W.2d 420, 421. The court also recognized the proposition that “if a plaintiff, in making out a case of specific negligence against one joined as a ■co-defendant with a carrier charged under the res ipsa loquitur theory, produces evidence which conclusively shows that the negligence of the one specifically charged was the sole cause of the accident, no recovery can be had against the carrier on any theory of liability. Rothweiler v. St. Louis Public Service Co., Mo.App., 224 S.W.2d 569.” 288 S.W.2d 420 [2, 3]. In the Long case plaintiff was a passenger on defendant’s bus as it proceeded southwardly on Eighth Street into the south half of Washington Avenue where it was struck by an eastbound automobile. The court said with respect to the situation shown by the evidence :

“In addition to making a prima facie case under the res ipsa loquitur doctrine, plaintiff offered considerable evidence with respect to the movements of the bus and the automobile of defendant May just prior to the collision, but this evidence was not developed to the point where it proved conclusively that the bus driver was at all times in the exercise of the highest degree of care and not guilty of negligence. It appears from the evidence that the bus entered the intersection and attained a speed of nine miles per hour. It proceeded across the intersection with undiminished speed until it came into collision with the automobile of defendant May. It does not appear from the plaintiff’s evidence whether the bus driver, when he entered the intersection or thereafter, took the precaution to look to the west for approaching traffic. At some point prior to the accident it must have become apparent that a collision was imminent, for it appears that the automobile was for some time prior to the collision proceeding toward the path of the bus with undiminished speed. Yet there is no explanation why the bus driver was unable to avert a collision, either by stopping, swerving, or checking the speed of the bus.

“In our judgment the evidence falls far short of proving conclusively that the bus driver was at all times in the exercise of the highest degree of care, and that the plaintiff’s injuries were caused solely by the negligence of defendant May. It was, therefore, quite proper to submit the case against appellant under the theory of res ipsa loquitur.” 288 S.W.2d 421.

In the present case the fact that defendant English crossed the center line prior to the collision and was on the wrong side of the street at the time of the impact did not repel the inference of defendant’s negligence. Plaintiff’s evidence might have supported an inference that defendant English’s car skidded onto the wrong side of the street due to ice on the street or was there due to negligent operation by English; but whether defendant English’s being on the wrong side of the street was a proximate cause of plaintiff’s injury and, if so, whether it was also the sole cause of the collision or whether the operator of defendant’s bus was also negligent depended upon circumstances not shown in plaintiff’s evidence. Plaintiff’s evidence, for example, did not show the location of the bus at the time English’s automobile crossed the center line, the relative positions of the vehicles at the time of the collision, whether the English car was then stopped, the bus’s speed as it approached the impact point, or traffic conditions in the immediate vicinity. In the absence of a showing by plaintiff of facts and circumstances repelling a reasonable inference of the operator’s concurring or contributing negligence, plaintiff was not precluded from submitting her case on the res ipsa loquitur theory against the company. Rothweiler v. St. Louis Public Service Co., Mo., 234 S.W.2d 552, 553, 554. As a matter of fact, defendant English’s evidence, which later came into the case, was to the effect that his car slid to the left across the center line and into the outside westbound traffic lane and came to a stop when the bus was ISO or 200 feet east of him; that at the time there was no other traffic; that as his car sat there stationary the bus, which was traveling westwardly in the inside westbound lane, when about 60 feet from his stationary automobile, swerved to the right and into his car. And the jury found either that English was not negligent or, if so, his negligence was not a proximate cause of the collision.

While, as noted above, the Niklas case, supra, stands for the proposition we have heretofore stated, it is true that the opinion quotes the following from McGrath v. St. Louis Transit Co., 197 Mo. 97, 94 S.W. 872, 874, upon which defendant relies as here applicable: “Where all the facts connected with the accident fail to point to the negligence of the defendant as the proximate cause of the accident, but show a state of affairs where an inference could be as reasonably drawn that the accident was due to a cause or causes other than the negligent act of the defendant, then the plaintiff cannot rely upon mere proof of the surrounding facts and circumstances of the accident, and the defendant is not called upon to explain the cause of the accident, and to purge himself of the imputed or inferential negligence.”

Whatever may be said as to the correctness of the above, if applied literally to fact situations different than that existing in the McGrath case, it is clear that where a carrier injures a passenger by colliding with a private vehicle, the passenger may submit a res ipsa case against the carrier unless his evidence repels any inference of the carrier’s negligence in the operation or maintenance of the bus. Rothweiler v. St. Louis Public Service Co., supra; Long v. St. Louis Public Service Co., supra.

Defendant contends the court erred in giving plaintiff’s res ipsa instruction 6 for the reason that it permitted and required the jury to find that plaintiff was injured as a result of the “collision mentioned in the evidence when there was no evidence to support such a finding and all the evidence was to the effect that plaintiff received her injuries as a result of the bus swerving tO‘ the right prior to the collision and [that] the collision itself occurred subsequent to the plaintiff’s fall and injury.” As will be noted from the summary of plaintiff’s testimony set forth above, plaintiff testified that it was the swerving of the bus which threw her off the seat and wedged her between the seat and the one immediately in front of her, and that thereafter she heard the crash of the collision and when the collision occurred it “hitched” her backward. Plaintiff’s instruction 6, a usual res ipsa submission, after hypothesizing that the bus and auto collided, was, in part, “and if you find that on the said occasion the plaintiff Mildred Hornberger was a fare-paying passenger aboard said bus, and if you find that as a direct result of the aforesaid collision the plaintiff Mildred Hornberger was injured, if so, then you are instructed that such facts,” etc. (Our italics.)

We point out that defendant does not contend that the evidence of the manner in which plaintiff was injured was not within the averments of plaintiff’s petition; nor does defendant contend that it objected at any time to the medical testimony concerning plaintiff’s injuries on the ground that they were not caused by the “collision” as pleaded. Indeed, the hypothetical questions asked three doctors who testified for plaintiff, to establish that the injuries resulted' from the trauma sustained in the accident, hypothesized in one instance that the bus swerved to the right and crashed into a car, a collision occurred, and when this occurred' plaintiff slipped down, etc.; in another, that the bus swerved to the right and collided with the vehicle; and in the third instance, that when the bus swerved to the right and' collided with an automobile at which time plaintiff was caused to slide off the seat. Technically, therefore, defendant is incorrect in saying that there was “no evidence to support such a finding,” i. e., that plaintiff was injured as a result of the collision. That is because plaintiff’s doctors, in response to hypothetical questions (unobject-ed to for any reason here pertinent) testified that plaintiff was injured, in part at least, as a result of the collision.

We prefer, however, to- base our ruling on the broader ground that our examination of the record discloses that the case was tried as though the swerving of the bus and its colliding with the automobile constituted “the collision.” Defendant relies upon Hughes v. Kiel, Mo.App., 100 S.W.2d 48. There plaintiff had pleaded that a certain collision caused an injury. His proof showed and his instruction submitted that the injury was caused by an abrupt stop of the vehicle prior to the collision. In the Hughes case, counsel consistently objected to the admission of evidence as to the sudden stopping as a cause of injury on the ground that plaintiff had pleaded that the collision caused the injury. No such question is involved in the present case. As we have noted, defendant in this case made no objection to evidence of injury as a result of the swerving and the colliding.

We are convinced that the jury understood, as apparently did the parties and trial counsel, that “the collision” as used in instruction 6, described the occurrence which consisted of the bus’s swerve and its impact with the automobile.

Defendant also contends that the trial court erred in giving instruction 6 for the reason that it assumed that defendant was negligent. After informing the jury that it could find defendant negligent unless it found and believed from other facts and circumstances that plaintiff’s injuries were not due to defendant’s negligence, the instruction proceeded: “and if you do find from the evidence in the case that the defendant, St. Louis Public Service Company, a corporation, was negligent and that plaintiff’s injuries, if any, were caused thereby or if you find that such negligence of the St. Louis Public Service Company, a corporation, combined and concurred with the negligence, if any, of the driver of the automobile mentioned in evidence and thereby directly contributed in part to cause the plaintiff to be injured,” etc.

Defendant contends that the words “or if you find that such negligence” (our italics) assumed that defendant was negligent. It seems plain that “such negligence” referred to the negligence which the jury had been required to find by the language immediately preceding the words in question. It would have been proper to have inserted “if any” after “such negligence” but it was unnecessary here. That is because in any reasonable view of the language used the jury must have understood that before it could find for plaintiff it had to find that some negligence of defendant was a proximate cause of plaintiff’s injuries.

Defendant next contends that the trial court erred in admitting the testimony of a doctor’s diagnosis of plaintiff’s condition allegedly based upon another doctor’s opinion.

Plaintiff’s family physician, Dr. Weekes, testified that he examined plaintiff on the day of the accident and found that her lower middle back was tender and pressure there caused pain to radiate down both her legs; that he sent her the next day to Dr. Allen, a radiologist, for X rays; that on December 21, 1958, she was hospitalized for a myelogram and further X rays in connection therewith; that the myelogram was performed by Dr. Jackson, an orthopedic surgeon. The radiologist’s report was in evidence as plaintiff’s Exhibit A and the X rays taken on both occasions were in evidence as plaintiff’s Exhibit B. The X rays were displayed to the jury and interpreted by the radiologist who took them and who testified for plaintiff. The report, Exhibit A, stated the facts as reflected by the X rays in the opinion of the radiologist. On direct examination, Dr. Weekes testified that he saw the X rays taken at the time of the myelogram but did not read them because he did not feel qualified to state what they showed; that all his X-ray work was done by a radiologist. He was then asked his conclusion as to the injuries plaintiff had sustained. He answered that plaintiff had sustained a ruptured inter-vertebral disc. After further testimony by the doctor (about five pages in the record), defendant’s counsel, as the first question on cross-examination, asked Dr. Weekes whether he was basing his diagnosis on the interpretation of those X rays. He answered, “I am basing my diagnosis on the interpretation of the x-rays and the patient’s symptoms” and he later said he based his diagnosis on the symptoms, that is, the pain radiating to plaintiff’s legs, plus the findings in the X rays.

On each of the occasions noted, defendant’s counsel objected to all the direct testimony concerning the doctor’s diagnosis because it constituted the “opinion of one doctor based upon the opinion of another.”

It is improper for one expert to base his opinion upon the oral or written opinion of another expert unless the opinion of such other expert is in evidence and is included as an assumed fact in a hypothetical question. Baumhoer v. McLaughlin, Mo.App., 205 S.W.2d 274, 280[4-7] ; Boring v. Kansas City Life Ins. Co., Mo., 274 S.W.2d 233, 238 [2, 3]. The X-ray report was in evidence. The X rays were later exhibited to the jury. The radiologist, Dr. Allen, interpreted the X rays for the jury. It seems apparent, therefore, that Dr. Weekes, in giving his conclusion as to plaintiff’s injury, did nothing more than to assume the truth of the facts shown by the X rays as interpreted by the radiologist just as if the question had been asked in hypothetical form. Under those circumstances, the admission of the testimony in question was not obj ectionable.

Defendant contends that the trial court erred in refusing a new trial on the ground that one of the jurors who sat in the case failed to disclose in his answer to a question on voir dire that he had theretofore had a property claim against defendant. On voir dire, defendant’s counsel asked this question: “Now, I would like to ask one general question, Mr. Hardin and Mr. Lampe have explained that they had been injured in accidents and had claims, is there anyone on the panel who has ever had a personal injury claim or a claim for damage to their automobile against the St. Louis Public Service Company, other than Mr. Lampe, by that I mean, was anyone injured on the bus and made a claim against the Public Service Company? * * * I take it by your silence then that no one on the panel has ever had a claim against anyone, any individual or corporation, or any partnership, for personal injuries, whereby they were injured and you were injured and brought claim against someone.”

After several of the members of the panel answered with respect to claims, including a property damage claim and injuries for which workmen’s compensation claims were involved, defendant’s counsel again asked: “Now, I would like to ask you, repeat the question, is there any member of anyone’s immediate family such as wife, husband, brother, sister, or anyone who had a claim against anyone for personal injuries received in any type of accident?” There was a response about a personal injury claim.

At a hearing in connection with defendant’s motion for new trial, juror O’Mara testified that he recalled a question on voir dire about having had a claim for damages against defendant, although he did not remember any details about being asked such a question; that he had completely forgotten about the fact that he had had a claim until the day before the new trial hearing when he had called defendant’s attorney to inquire as to why he (the witness) had been subpoenaed; that the lawyer answered by asking whether the witness had had a claim in 1949; that he got to thinking about it and from his recollection and from the letters concerning' it which were later shown to him, he remembered or concluded that he did have a $126 property damage claim eleven years previously which had been turned over to his family attorney for attention ; that he did not remember that he had had such a claim when asked on voir dire and did not remember it during the trial; that it was not mentioned or discussed in any way in the jury room and that it had not influenced his verdict; that if he had recalled that he had had such a claim he would have disclosed the fact; and that there had been no attempt on his part to hide or conceal anything.

The questions asked by defendant’s counsel demonstrate that it would have required a sharply attentive panel member to have realized that those questions required answers as to claims for property damage as distinguished from personal injury claims. Assuming, however, that Mr. O’Mara should have been aware of the fact that counsel’s question had, more or less, incidentally included property damage claims as well as those for personal injury, it clearly appears that the trial court reasonably could have found that Mr. O’Mara did not intentionally withhold or conceal any information and, thus, that the trial court did not abuse its discretion in overruling the motion for a new trial on the stated ground. What the court said in Harrison v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 348, 351 [3, 4], is applicable and adversely decisive of defendant’s contention:

“In a case such as this, where a jury has failed to disclose some fact on voir dire examination which might reasonably have affected his qualification to sit as a juror in the case, the question of what consequence shall follow resolves itself into one of whether he was guilty of an intentional concealment of the matter concerning which he was being subjected to interrogation. If the conclusion be reached that his failure to answer amounted to deception, and that the losing party was thereby denied the fair trial to which it was entitled, the only effective remedy would he to set aside the verdict and award a new trial. Piehler v. Kansas City Public Service Co., supra [357 Mo. 866, 211 S.W.2d 459]. However an unintentional failure to disclose information not directly connected with the case does not necessarily show prejudice on the part of the juror so as to call for the trial of the case anew. Davis v. Kansas City Public Service Co., 361 Mo. 61, 233 S.W.2d 679; O’Brien v. Vandalia Bus Lines, supra [351 Mo. 500, 173 S.W.2d 76], In the final analysis, therefore, the question of what the result shall be must be left primarily to the discretion of the trial court, reviewable only for abuse, and with the court’s decision to conclude the matter unless an abuse of discretion unmistakably appears. Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795.” (Bracketed inserts ours.) See also Johnson v. Kansas City Public Service Co., Mo., 265 S.W.2d 417, 421.

Defendant’s final contention is that the verdict was so grossly excessive as to conclusively prove that it was the result of passion, prejudice and misconduct on the part of the jury. Defendant contends also that, in any event, the judgment as reduced by remittitur is excessive.

The jury returned a verdict of $35,000, the amount sued for. Excessiveness of a verdict, even gross excessiveness, does not necessarily establish misconduct or passion and prejudice on the part of the jury. McCaffery v. St. Louis Public Service Co., 363 Mo. 545, 252 S.W.2d 361, 369. Defendant’s new trial assignment that the verdict was so' excessive as to evidence passion, prejudice, and misconduct on the part of the jury was overruled by the trial court who thereby found that the amount of the verdict did not indicate passion, prejudice, or misconduct. Defendant points to nothing, and we have found nothing in the record, to support the conclusion that the verdict was the result of passion or prejudice or misconduct on the part of the jury.

Plaintiff, a widow 57 years of age at trial time, for several years had done general housework one day a week for each of several employers. She made $48 a week for SO weeks each year. Her work consisted of cleaning, ironing, and other tasks which required stooping and bending and much physical effort. She had been in good health and was able to do that work each day prior to the accident. Following the collision, she “baby-sat” until about 3:30 p. m., although she experienced pain. When she returned home she called the family physician, Dr. Weekes. She was experiencing pain in her back, her right arm and shoulder, and in her right knee and leg, and shooting pains down the backs of both her legs. The doctor gave her medicine for pain and advised X rays which were made the next day. Dr. Weekes saw her that day and then every other day at her house until December 21 when she was hospitalized for a myelogram. During the period from December 8 to December 21 she was in bed receiving heat treatments and medicine for blood pressure. On the 21st, a myelogram was done and further X rays taken. She was in the hospital three days and thereafter remained under Dr. Weekes’ care in her home. He prescribed a back brace which she purchased on January 2, 1959, and wore continuously for three months and has worn since at all times except at nights. She has continuously slept on a board under her mattress. Dr. Weekes saw her once a week for a time after she left the hospital and later every two or three weeks. Her back has continued to hurt constantly, although it pains more severely when she makes a misstep or tries to bend and she has difficulty in negotiating stairs. She can’t stoop to pick up things from the floor, cannot wash woodwork, or stand on a ladder, or vacuum, or carry pails of water, because when she attempts to do any of those things her back pains too severely. She has not worked since the accident except for one night’s “baby-sitting.” She has had help in her home since the accident. She paid $59.09 for the brace, Dr. Allen’s bill of $15, Dr. Jackson’s bill of $25, and People’s Hospital bill of $79.20. She had not paid Dr. Weekes’ bill at trial time. She had not seen Dr. Jackson or Dr. Allen since the hospitalization except for an examination by each a week before trial. She still took medicine prescribed by Dr. Weekes, used a sleeping board, and wore the brace.

Four of plaintiff’s former employers testified that she formerly had worked for them, had been in good health, able to do heavy housework, and that she had not worked for them since the accident.

As we have noted, Dr. Weekes saw plaintiff on the 8th, sent her for X rays the following day, hospitalized her on December 21 for a myelogram, and it was his conclusion that she had suffered a ruptured inter-vertebral disc. He saw her approximately twice a week through May 1959 and once a month until the time of trial. His treatment consisted of sedation for pain, massage of the back muscles on occasion, heat treatments, and prescribing a lumbar brace. He testified that her injury was permanent and painful, that she would have pain in the future, and that a reasonable bill for his services was $600.

Dr. Allen, the radiologist, took X rays on two occasions, December 9 and December 21; the latter, after an opaque liquid had been injected into plaintiff’s spinal column. His diagnosis was a rupture of the inter-vertebral discs between the bodies of the fourth and fifth lumbar vertebrae and the body of the fifth lumbar vertebra and the sacrum. He examined her again on June 8, 1960, just prior to trial and again took X rays. Those X rays showed a greater protrusion of the ruptured disc.

Dr. Arthur M. Jackson, an orthopedic surgeon, examined plaintiff on December 21, 1958, and performed a myelogram at People’s Hospital. He found obstructions in the spinal column due to a ruptured intervertebral disc between the fifth lumbar vertebra and the first sacral vertebra and a partially ruptured disc between the bodies of lumbar vertebrae four and five. He examined her on January 10, 1960, and she still complained of pain in the lower back and in the region of the lumbar sacral joint and right buttock and right thigh. She stated she experienced sharp pain in the lower back area on coughing or sneezing, and that prolonged sitting or standing aggravated the pain. She complained of intermittent swelling and tenderness of the right knee. Her movements were slow and deliberate. She walked noticeably bent forward and there was hardening of the lumbar sacral joint. Her forward bending was limited and side bending was limited 20 degrees to the right and 10 to the left. There was limitation of motion on straight-leg raising and there was a point of tenderness over the lumbar sacral area just to the right of the joint and that tenderness followed the sciatic nerve, the right ankle and knee jerks were diminished and not normal compared to the left, and he found the same narrowing in the intervertebral spaces. It was his conclusion that she suffered from ruptured discs between the fourth and fifth lumbar vertebrae and between the fifth lumbar and the first sacral vertebrae, that the condition was permanent and disabling in so far as accomplishing the kind of housework she had been doing, and that she would suffer pain and need medical care in the future.

We have examined the cases relied on by defendant to support its contention that the judgment as reduced is excessive. In Miller v. Multiplex Faucet Co., Mo., 315 S.W.2d 224, relied on by defendant, a verdict of $15,000 was reduced to $10,000 by this court. It was pointed out at 315 S.W.2d 229, that there “was no evidence tending to show the intervertebral processes were damaged or injury to the spine, other than the scoliosis as noted.” In the present case, the evidence shows two ruptured discs. In Carpentier v. Middlewest Freightways, Mo., 259 S.W.2d 816, on which defendant relies, the jury returned a verdict for $20,000 and the trial court ordered a remittitur of $11,000. In the Carpentier case there was a ruptured disc between the fourth and fifth lumbar vertebrae with consequent narrowing of the intervertebral space; plaintiff favored the right leg on walking and there was a marked restriction of all the movements of the right hip and tenderness of the coccyx. Plaintiff was 41 and had been in good health. She received some other injuries as a result of the collision, such as head injuries causing bleeding from her ears, and an injury to her knee, hip, and back. She had employed extra help at $50 or $60 a week plus board. Plaintiff was nervous at the time of trial but there was a sharp dispute as to whether many of the injuries were the result of the collision. With respect to the verdict as reduced, the court said: “We have a situation before us in which if the trial court had not ordered a remittitur, it is doubtful that this court would have disturbed the verdict.” 259 S.W.2d 820.

In Ukman v. Hoover Motor Express Co., Mo., 269 S.W.2d 35, decided in 1954, we approved a judgment in the sum of $15,000 for an injury to a 29-year-old man consisting of the rupture of an intervertebral disc between the fifth lumbar and first sacral vertebrae, where there was no evidence of special damages, and where the injured party had refused an operation.

In this case, plaintiff’s special damages at trial time amounted to $4,378. We are of the opinion that we should not further reduce the amount of the judgment herein.

The judgment is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by COIL, C., is adopted as the opinion of the court.

All concur.


source: Caselaw Access Project

author: COIL, Commissioner.

license: Public Domain

text:
    The GAS SERVICE COMPANY, a corporation, Appellant, v. M. E. MORRIS, individually and as Director of Revenue of Missouri, Warren E. Hearnes, individually and as Secretary of State of Missouri, Milton Carpenter, individually and as State Treasurer of Missouri, Haskell Holman, individually and as State Auditor of Missouri, and John W. Schwada, individually and as State Comptroller of Missouri, Respondents.
    No. 48577.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.

      Kyle D. Williams, Jefferson City, John B. Gage, John H. Kreamer, Laird P. Bowman, Kansas City (Gage, Hodges, Moore, Park & Kreamer, Kansas City, of counsel), for appellant.
    Thomas F. Eagleton, Atty. Gen., Joseph Nessenfeld, Asst. Atty. Gen., for respondents.
   COIL, Commissioner.

The Gas Service Company has appealed from a judgment dismissing its action against the Missouri Director of Revenue, Secretary of State, Treasurer, Auditor, and Comptroller, both in their official capacities and as individuals. Appellant company sought to recover the sum of $17,490 as the amount of domestication tax which allegedly had been illegally assessed against and collected and withheld from the company.

Company’s petition alleged in substance: that about January 1, 1959, the then secretary of state, purportedly under the provisions of section 351.595(2), requested the payment by company of an additional domestication tax in an amount indicated by an affidavit to be filed showing the value of company’s property in Missouri and the proportion of company’s stated capital and surplus represented by its property located in Missouri; that company filed the affidavit and tendered the sum of $85 as additional domestication tax due; that the tendered amount was returned by the secretary of state with the advice that the tax due amounted to $17,575 and that unless it was paid within sixty days company’s authority to transact business-in Missouri would be forfeited; that company thereafter paid the tax by a check marked “Paid Under Protest,” which was delivered to the director of revenue accompanied by a letter of protest as to the amount assessed in excess of $85; that company filed a claim for refund with the director of revenue pursuant to the provisions of section 136.035 and the claim was denied.

Company’s petition averred further: that the additional domestication tax (in excess of $85) assessed and collected apparently was based upon a provision of section 351.-595(2), supra, providing that the base for the assessment of the tax should, in no event, be less than the value of the corporation’s property located in Missouri; that Missouri domestic corporations are required to pay an additional organizational tax only in the event of an increase in their authorized shares and are not required to pay an amount based upon the increased value of their property located in Missouri; that company’s authority to transact business in Missouri was granted in 1926, at which time it paid all proper taxes and fees and complied with all the conditions for its entry into this state, among which was the condition that any domestication tax was to be calculated upon the same basis as for domestic corporations and that such right of equality of treatment thereby became and was a vested contract right; that, consequently, the assessment and collection of a tax based upon an increase in the value of plaintiff’s property located in Missouri was unconstitutional in that it impaired the obligation of contract between company and the State of Missouri and denied company the equal protection of the laws of Missouri; and further, that the provisions of section 351.-595(2), supra, were inapplicable to company by virtue of the provisions of section 351.-695, providing that the rights, privileges, immunities, and franchises vested or accrued under the provisions of any law prior to the enactment of chapter 351 should not be impaired or diminished or affected thereby or by the repeal of any such prior law.

Company alleged further: that by reason of the above-stated averments $17,490 of the tax was wrongfully assessed, collected, and had been wrongfully diverted to the “general use of the State of Missouri” and that company was entitled to a judgment against the named persons in their respective official capacities and as individuals in the sum of $17,490 with interest thereon; that plaintiff had exhausted its administrative remedies; that the judgment should direct the comptroller to approve the refund and certify the claim and that the auditor, treasurer, director of revenue and secretary of state should pay over the refund to the company. A copy of the claim for refund filed with the director of revenue was attached to the petition and essentially set forth company’s position as reflected by the above-stated averments of its petition.

Respondents’ (defendants’) motion to dismiss contained the grounds that the petition failed to state a claim upon which relief could be granted; that the action against the named defendants in their official capacities was in reality a suit against the state and that the state had not consented to be sued in an action such as company’s present one; and that the petition failed to state a claim for relief against any of the defendants individually. As noted, that motion to dismiss was sustained.

Company’s first contention on this appeal is that the amount of the additional domestication tax (in excess of $85) was illegally and unconstitutionally assessed and collected for the reasons alleged in its petition. We do not reach that question because, in our view, for the reasons hereinafter set forth, the company could not maintain this action against defendants in either their official or individual capacities.

Company does not concede but assumes arguendo that its action, in so far as it sought relief against named defendants in their official capacities, was actually a suit against the State of Missouri, although company has suggested no reason why the assumption is not true. Inasmuch as the averments of the petition compel the conclusion that the money collected as additional domestication tax was paid into the coffers of the State of Missouri, and inasmuch as the judgment sought against defendants in their official capacities could be satisfied only from money in the state treasury, it seems apparent that the relief sought is against the state. Under such circumstances it is clear and we so hold that in so far as the petition attempts to state an action against the named defendants in their respective official capacities, the action is one against the State of Missouri. Kleban v. Morris, 363 Mo. 7, 247 S.W.2d 832, 837(6-8), 839(9).

Company contends, however, that even if the action in the respect noted is against the state and even if the well-settled proposition that the state may not be sued without its express consent is applicable, the state has consented to be sued in this action for money had and received. We have the opinion that company’s position is untenable and that its contention has been ruled adversely to it in Kleban v. Morris, supra.

We have heretofore noted that company filed a claim for refund under the provisions of section 136.035, supra. That section provides in part:

“1. The director of revenue from funds appropriated, shall refund any overpayment or erroneous payment of any tax which the state is authorized to collect. The general assembly shall appropriate and set aside funds sufficient for the use of the director of revenue to make refunds authorized by this section or by final judgment of court. * * *

“3. No refund shall be made by the director of revenue unless a claim for refund has been filed with him within two years from the date of payment. Every claim must be in writing under oath and must state the specific grounds upon which the claim is founded.”

Company contends that the words contained in the above statute, “by final judgment of court,” considered in connection with the fact that the word “shall” is used in the first sentence above-quoted, and that the statute applies by its terms to any tax, are tantamount to an express consent by the state to be sued in this action. Those same words, i. e., “by final judgment of court,” were construed in Kleban v. Morris, supra, in connection with a similar contention there made by appellant. The Kle-ban case was to recover use taxes assessed and collected under a law which was subsequently declared unconstitutional. The use tax law was part of the Sales Tax Act and that act provided in part (section 144.200) : “It shall be the duty of the general assembly to appropriate and set aside funds sufficient for the use of the director of revenue to make any refund of taxes required by this chapter or by final judgment of court.” The court in the Kleban case pointed out that the Sales Tax Act also provided (section 144.190(2)) that any tax illegally collected should be refunded provided a claim for refund was filed within one year and provided (section 144.260) that a circuit court had power to review all questions of law and fact determined by the director of revenue in administering the provisions of the act on writ of cer-tiorari commenced within thirty days after notice of director’s final decision in any such matter. The court, at 247 S.W.2d 837, after pointing out that statutes waiving immunity of the sovereign from suit are strictly construed, held that the “final judgment” referred to in section 144.200, supra, of the Sales Tax Act was a final judgment obtained in the pursuit of the remedy provided by the act, viz., a claim for refund and judicial review thereof, and that such language did not refer to a “final judgment” obtained in an original action such as the one there for the recovery of the taxes illegally collected.

In the present case, company’s claim for refund from the director of revenue under section 136.035 was denied. Section 138.430 provides in part: “Any person, firm or corporation shall have the right to appeal to the state tax commission from any finding, order, decision, assessment or additional assessment made by the director of revenue, or by the state collector of revenue, under such rules and regulations as said commission shall prescribe. The state tax commission shall have authority to affirm, modify or reverse any such finding, order, decision, assessment or additional assessment which is found to be unlawful, unfair, improper, arbitrary or capricious.”

It seems, therefore, that as in Kleban v. Morris, supra, with respect to the language of section 144.200, so in this case, the words of section 136.035, “by final judgment of court,” probably refer to a final judgment obtained in a proceeding authorized by statute for the review of the director of revenue’s administrative decision by an appeal to the state tax commission under section 138.430 and thereafter judicial review under the provisions of Civil Rules 100.03 to 100.07, V.A.M.R. Furthermore, however, in the light of the established rule that statutes which are said to waive the immunity of the sovereign to suit are to be strictly construed, no reason appears which would cause us to hold that the language of section 136.035, even in the absence of the foregoing explanation of the words “by final judgment of court,” constituted a clear and explicit consent on the part of the state to be sued for the refund of illegally collected taxes by a common-law action for money had and received. The language, unexplained, constitutes an ambiguous reference but does not constitute a clear and unequivocal consent by the state to be sued in the present action.

Company contends further, however, that even in the absence of a consent it is entitled to maintain this action against the state. In our judgment, that precise contention has been ruled adversely to the company in Kleban v. Morris, supra. In that case it was said (247 S.W.2d 836, 839, 840): “The courts of this State have consistently held that the State may not be sued without its consent. Nacy v. Le Page, 341 Mo. 1039, 1041, 111 S.W.2d 25(1), 114 A.L.R. 259; Merchants Exchange [of St. Louis] v. Knott, 212 Mo. 616, 647, 111 S.W. 565, 574; State ex rel. Highway Commission v. Bates, 317 Mo. 696, 296 S.W. 418, 420(1, 2); Zoll v. St. Louis County, 343 Mo. 1031, 124 S.W.2d 1168, 1173(2-4). See, among others, Cohens v. Virginia, 6 Wheat. 264, 302(3), 307, 19 U.S. 264, 302(3), 307, 5 L.Ed. 257; State of Missouri v. Fiske, 290 U.S. 18, 28, 54 S.Ct. 18, 78 L.Ed. 145. The principle that the sovereign cannot be sued without its consent or permission rests upon grounds of public policy and the law making authority is the proper body to change the public policy and authorize a suit against this State. Nacy v. Le Page, supra, 111 S.W.2d loc. cit. 26; Zoll v. St. Louis County, supra. * * *

“Plaintiffs also say the statutory remedy is not exclusive as they had a common law right of action to recover, citing State ex rel. S. S. Kresge Co. v. Howard, 357 Mo. 302, 208 S.W.2d 247, 250(6), and Security Nat. Bk. v. Young, 8 Cir., 55 F.2d 616, 618 (2, 3), [84 A.L.R. 100], The Kresge Co. case was not a suit against the State for the recovery of money, but to compel the payment of an appropriation, a ministerial act, and we think the statutory remedy available for a refund of a tax paid under the Sales Tax Act and deposited in the State Treasury is exclusive until some other method is legally made available. * * * Absent legislation authorizing the refund of illegally collected taxes, the enforcement of a refund against the State may not be had, * *

To support its contention to the contrary, company cites Atchison, Topeka & Santa Fe Ry. Co. v. O’Connor, 223 U.S. 280, 32 S.Ct. 216, 56 L.Ed. 436, and American Mfg. Co. v. City of St. Louis, Mo., 192 S.W. 399. In the O’Connor case, an action was brought in the United States Circuit Court for the District of Colorado against the Colorado tax collector who, it was alleged, collected and retained the money. Whatever the significance of the opinion in that case may be, it is clear that it did not decide any question respecting the right of this state to invoke its sovereign immunity in its own courts. The American Manufacturing Company case, supra, was not an action against the state or against a state official but was against the City of St. Louis, and no question of the state’s immunity to suit was there involved.

Appellant next contends that even if, contrary to its contention but as we have held, it may not maintain a common-law action for money had and received against the state, its petition, liberally construed, should be considered an action for judicial review of the administrative decision of the director of revenue denying its claim for refund under the provisions of Civil Rule 100.08 (section 536.105). C.R. 100.08 provides for the judicial review of administrative decisions in noncontested cases which are not subject to administrative review.

Respondents contend that the decision of the director of revenue denying appellant’s claim for refund was subject to administrative review in that the appeal provisions of section 138.430 of the 1945 Tax Commission Act were applicable and required that appellant appeal the director’s decision denying its claim for refund to the state tax commission. Section 138.430 provides:

“1. Any person, firm or corporation shall have the right to appeal to the state tax commission from any finding, order, decision, assessment or additional assessment made by the director of revenue, or by the state collector of revenue, under such rules and regulations as said commission shall prescribe. The state tax commission shall have authority to affirm, modify or reverse any such finding, order, decision, assessment or additional assessment which is found to be unlawful, unfair, improper, arbitrary or capricious.

“2. Every owner of real property or tangible personal property and every merchant and manufacturer shall have the right of appeal from the local boards of equalization under rules prescribed by the state tax commission. Said commission shall investigate all such appeals and shall correct any assessment which is shown to be unlawful, unfair, improper, arbitrary or capricious.”

Appellant contends the foregoing provisions were not applicable to a decision of the director of revenue denying a claim for refund of a domestication tax theretofore paid because, says appellant, a reasonable and proper construction of the above section makes it plain that it was the intent of the general assembly that paragraph one above was to apply only to findings, orders, decisions, assessments, or additional assessments made by the director of revenue or the state collector of revenue in matters dealing solely with property taxation. Appellant argues that such a meaning and intent is plain from the context in which the section appears, “as well as from its relation to other parts of the taxing structure and from its history.” In support, appellant suggests that if the section is read in the form in which it was enacted rather than in the form as it now appears in the statute by reason of its placement by the committee on legislative research, the fact that it relates only to property taxation will be made abundantly clear; and appellant relies upon the banc case of State ex rel. Monier v. Crawford, 303 Mo. 652, 262 S.W. 341, to which we shall hereinafter again refer.

Respondents contend that the language of the section in question (138.430) is plain and unambiguous and cannot “be misunderstood or explained away”; that when the statute says “any finding, order, decision, assessment or additional assessment made by the director of revenue, or by the state collector of revenue,” it means just what it says and thereby grants power to the state tax commission to affirm, reverse, or modify any such finding, order or decision and not solely property tax decisions.

The Tax Commission Act, present sections 138.190-138.490 inclusive, was first enacted in 1917. Laws 1917, p. 542. That act established for the first time a state tax commission. In its original form or as it was revised prior to 1945, it contained no section like or similar to present section 138.430. That section was added to the Tax Commission Act as an entirely new provision by the 63rd General Assembly. Laws 1945, pp. 1805, 1812. The 1945 Tax Commission Act was enacted as reperfected House Committee Substitute for House Bill 528 as amended by Senate Committee Amendment No. 4. H.B. 528 as originally presented did not contain any of the provisions of present section 138.430. A provision relating to the right of appeal to the state tax commission was added in the House Committee Substitute. The substitute bill provided for the right of appeal “from any assessment or additional assessment made by the director of revenue.” Senate Committee Amendment No. 4 provided for an appeal to the state tax commission “from any finding, order, decision, assessment or additional assessment made by the director of revenue or by the state collector of revenue.” (The amendment added the words italicized above.) House Journal, 63rd General Assembly, Vol. II, pp. 2281, 2329, 2330.

The 1945 Tax Commission Act created within the new department of revenue (Laws 1945, p. 1430) a “commission to be known and designated as the State Tax Commission. The Director of Revenue shall have no supervision, authority or control over such actions or decisions of the State Tax Commission as relates to its duties prescribed by law.” Laws 1945, p. 1806. Prior to 1945, there was no such official as a director of revenue; nor was there a state collector of revenue. Inasmuch as the section with which we are here concerned (138.430) was first enacted in 1945, and inasmuch as the references in that section to the acts of the director of revenue and of the state collector of revenue could not have referred to the findings, orders, decisions, assessments, or additional assessments which either of those officials historically or traditionally had theretofore made, it is apparent that the legislature necessarily referred to the director’s or the collector’s findings, orders, decisions, assessments, and additional assessments which were to be made in the future, either by power conferred in the Tax Commission Act itself, in other laws enacted at the same (1945) session of the legislature, or in laws enacted at subsequent sessions.

There was no provision in the 1945 Tax Commission Act referring to any finding, order, decision, assessment, or additional assessment to be made either by the director or the collector of revenue. We have examined all of the other laws enacted by the 63rd General Assembly under the title “Taxation and Revenue” to determine whether, and if so what, references are contained therein to the findings, orders, decisions, assessments, or additional assessments of the director or of the collector of revenue.

The Sales Tax Act, as revised in 1945, Laws 1945, p. 1865, provided that the director of revenue could make "an additional assessment of tax,” giving written notice thereof and designating a time and place where the taxpayer might be heard on a petition for reassessment. It was further provided that the circuit court of the county of the taxpayer’s residence or business location was to review all questions of law and fact determined by the director of revenue in administering the Sales Tax Act by an action instituted within thirty days after notice of the director’s final decision.

Appellant argues that the foregoing provisions of the Sales Tax Act makes it apparent that the legislature did not • intend that the appeal provisions of section 138.-430 would apply to the director’s decisions as to sales tax because of the specific provisions for other review noted above. Appellant correctly asserts that this fact, standing alone, tends to support its contention that the legislature intended to deal only with matters relating to property tax when it inserted the appeal provision of section 138.430.

The Income Tax Act, as revised in 1945, Laws 1945, p. 1881, provided that the director of revenue could make an “assessment or additional assessment” and send the taxpayer notice thereof; that the taxpayer might petition for an abatement or correction within thirty days after notice whereupon the director would fix a hearing date; and that “Any taxpayer under the terms of this act shall have the right to appeal to the State Tax Commission from any final decision by the Director of Revenue regarding abatements, corrections or reassessments,” and that the determination of the amount of the tax was the “final decision” of the director from the time of service of such determination and that the proceedings for appeal to the state tax commission should be as “provided by law” for appeals to said board.

An income tax is not a property tax; it is in the nature of an excise tax, General American Life Ins. Co. v. Bates, Mo., 249 S.W.2d 458, 462(4); and thus appellant concedes that the Income Tax Act as revised in 1945 provided for an appeal to the state tax commission from a decision of the director of revenue in a matter other than one involving property tax; but, says appellant, the legislature apparently did not believe that the appeal provisions of section 138.430 covered the income tax appeal, else it would not have included the specific provision for appeal to the state tax commission in the revised Income Tax Act. Appellant says that if both appeal provisions were applicable they were in conflict. We do not so read the two sections. On the contrary, it seems to us that the appeal provisions of section 138.430 and the appeal provisions of the Income Tax Act, Laws 1945, p. 1898, were not in conflict or repugnant but were harmonious. It seems reasonable to suppose that when the legislature provided in the Income Tax Act for an appeal to the state tax commission and stated that the proceedings for appeal be “as provided by law for appeals to said Board,” it specifically referred to the appeal provisions in section 138.430.

The law providing for a property tax on intangible personal property, Laws 1945, p. 1914, provided that if the taxpayer failed to make a return or made an insufficient one, the director of revenue should make an “assessment or additional assessment of such intangible property” and notify the taxpayer of such; that the taxpayer could apply in writing for a hearing before the director of revenue and could appeal to the state tax commission “as provided by law.” The intangible personal property tax, while a “property” tax, was not a tax which had been traditionally or historically within the jurisdiction of the state tax commission.

The laws enacted in 1945 relating to the taxation of banks, Laws 1945, p. 1921, and relating to credit institutions, Laws 1945, p. 1937, each contained provisions that in the event the director of revenue determined that a taxpayer owed more tax than returned, the director was to so notify the taxpayer, fix a time and place for hearing, and, as a result, the director was to make “such order” as may be lawful, and provided further that the taxpayer had the right to appeal from such order “as provided by law.” It would seem that “as provided by law” in those two instances either referred to the appeal provisions of section 138.430, or to the review provisions of the Administrative Procedure and Review Act as enacted in 1945. Laws 1945, p. 1504.

As we have noted, the provisions of section 138.430 provided for an appeal to the state tax commission from any finding, decision, order, assessment, or additional assessment made by the state collector of revenue, as well as by the director of revenue, and, as we have also noted heretofore, the state collector was a new official position. Senate Committee Substitute for Senate Bill 297, Laws 1945, p. 1428, created the department of revenue and provided that it would be in the charge of a director of revenue and that a state collector of revenue was to head the department’s division of collection. Laws 1945, p. 1432, Section 9 of the Department of Revenue Act, Laws 1945, p. 1433, specifically provided that the division of collection which was headed by the state collector of revenue was to collect all taxes, licenses, and fees payable to the state “except that county and township collectors shall collect the state tax on tangible property.” Thus, the legislature pro-fided at the same session at which it enacted the appeal provisions of present section 138.430 that the state collector of revenue was not to collect state taxes on tangible property. It seems unlikely that the legislature in giving one a right of appeal to the state tax commission from any decision of the state collector intended to confine that right to the collector’s decisions involving ■“property” taxes, when, at the same time, the legislature had eliminated the collection of tangible property taxes from the sphere of the state collector’s duties.

We have reviewed in some detail the provisions of the tax laws enacted at the same session of the legislature at which the provisions of the Tax Commission Act in question were enacted to determine whether we may thereby find some clear indication that the legislature intended by the language used in section 138.430 to refer to decisions, orders, etc., of the director and collector of revenue relating solely to property tax matters. We find no provisions in such laws, when considered as a whole, which indicate any such an intent, even though it may be that such acts do not indicate with certainty the legislature’s intent.

Nor do we read the provisions of present section 138.430 any differently when that section is viewed, as it now appears, in a more logical position than it occupied in H. 'C.S.H.B. 528. It is true that when enacted, the appeal provisions (now section 138.430) were illogically included between paragraphs detailing unrelated duties of the tax «commission. Laws 1945, pp. 1810-1814. We are unable to discern, however, how that fact supports the argument that the legislature thereby indicated that it intended the mew section to refer only to actions of the director and collector which related solely to property tax matters.

As stated heretofore, appellant relies upon the banc case of State ex rel. Monier v. Crawford, 303 Mo. 652, 262 S.W. 341. That case construed the 1917 Act establishing the state tax commission, then section 12852 IRSMo 1919. No provision similar to present section 138.430 was included or construed. The sole question was whether, under the provisions of the act as it then existed, an authorized agent of the state tax commission could examine and inspect income tax returns and require their delivery for such inspection. The court held that because of the act’s numerous and specific references to property taxation and because of the absence of any reference to income taxes, the act had been drafted with property taxes alone in mind. The basis for that conclusion was that the only possible premise for the contention that the tax commission had the power to inspect income tax returns was the general language in the Tax Commission Act that the commission had supervision over the assessing officers in the state. The income tax law, however, enacted later at the same session of the legislature, specifically forbade the inspection of income tax returns. The court held that the general language of the Tax Commission Act should not be so construed as to destroy the specific contrary provisions in the later act; that the fact that the two laws were enacted at the same session was of no consequence when they were in irreconcilable conflict, but that the specific provisions of the income tax law would prevail over the general language of the Tax Commission Act. The court pointed out, however, that if the Tax Commission Act were construed to apply solely to property taxes, it was in harmony with the later specific provisions of the Income Tax Act, while if it were construed otherwise it would be in direct conflict with the later act which directly forbade the commission to inspect income tax returns in clear and positive language. The Monier case clearly is not authority under the facts here, where we are construing an entirely new provision of the Tax Commission Act which in specific language provides for appeals from any decision, not limited to decisions in property tax matters only. It may well be that the legislature was fully aware of the fact that it was not so limiting paragraph one of the section; for in paragraph two, supra, it provided for appeals from local boards of equalization by owners of “real property or tangible personal property,” while in paragraph one it included no reference to “property.”

In view of all the foregoing, we are of the opinion that there is no justification for inferring or concluding that the legislature meant to say anything other than the ordinary meaning of the words it used in section 138.430 would indicate it did say. Thus we are relegated to the applicable rule that in seeking the legislative intent we should ascribe to the language used its plain and rational meaning. Marty v. State Tax Commission, Mo., 336 S.W.2d 696, 699(1, 2).

We therefore hold that the legislature’s language that “Any person, firm, or corporation shall have the right to appeal to the state tax commission from any finding, order, decision, assessment or additional assessment made by the director of revenue, or by the state collector of revenue, under such rules and regulations as said commission shall prescribe,” was meant to include any such finding, decision, etc., made in any matter relating to taxation, and that the legislature did not intend to limit the section’s provisions in paragraph one to decisions, etc., relating only to matters involving property taxes. It follows that the director’s decision denying appellant’s claim for refund was administratively reviewable by an appeal to the state tax commission and that the tax commission’s decision was judicially reviewable under the provisions of C.R. 100.03-100.07, both inclusive.

Appellant contends further that even if, as we have held above, it could have appealed the director’s decision to the state tax commission under the provisions of section 138.430, such would have been a vain and useless procedure and was not essential as a condition precedent to judicial review, because the state tax commission as an administrative body had no power to decide constitutional questions which, says appellant, were the only questions for decision. In the first place, the allegations of appellant’s petition indicate that at least in part appellant contended that the provisions of the section under which the domestication-tax was allegedly assessed were inapplicable-to it. Consequently, it seems apparent that the administrative agency on review might well have reversed the decision of the director of revenue without deciding any constitutional question and perhaps thereby obviating any necessity for such a decision. Be that as it may, however, sufficient to answer to appellant’s above-stated contention is that as heretofore noted C.R. 100.08' (section 536.105) provides for the judicial! review of administrative decisions in non-contested cases which are not subject to‘ administrative review. The rule in that respect states, “When any administrative officer or body existing under the constitution or by statute or by municipal charter or ordinance shall have rendered a decision which is not subject to administrative review,” etc. We have held that the decision of the director of revenue was subject to administrative review by the state tax commission under the provisions of section 138.430. Thus, appellant was not entitled to a judicial review of the director’s decision under the provisions of C.R. 100.08. Appellant does not contend that its petition in this case should be considered one for review of a “contested case” under the provisions of C.R. 100.03-100.07. One sufficient-reason why it could not be so considered! is that C.R. 100.04 requires that the petition for review shall be filed in the circuit court within thirty days after the mailing or delivery of the notice of the agency’s final decision. It is conceded that the appellant’s, action herein was not instituted for at least fifty days after it received notice that its. claim for refund had been denied.

Furthermore, it should be observed that, in any event, the question whether appellant must have appealed from the director’s decision to the state tax commission involves more in this case than the-considerations involved in usual questions, pertaining to the necessity for the exhaustion of administrative remedies. Here,. there is a further applicable principle which arises by reason of the assertion by the state of its immunity from suit. The legislature here provided for the taxpayer a procedure to recover a tax illegally collected and to that extent the state consented to be sued. Rogers v. Holmes, 214 Ore. 687, 332 P.2d 608, 611(1, 2). When a state consents to be sued, it may be proceeded against only in the manner and to the extent provided by the statute; and the state may prescribe the procedure to be followed and such other terms and conditions as it sees fit. State ex rel. Leggett v. Jensen, Mo., 318 S.W.2d 353, 359; Kleban v. Morris, supra, 247 S.W.2d 840; American Steel & Wire Co. of New Jersey v. State, 49 Wash.2d 419, 302 P.2d 207, 210(6, 7); Land Holding Corp. v. Board of Finance & Revenue, 388 Pa. 61, 130 A.2d 700, 703(1-3); Executive Air Service v. Division of Fisheries & Game, Mass., 173 N.E.2d 614, 615(1, 2). Thus, if as in the present instance the only method and procedure provided for the recovery of illegally collected taxes was through the media of administrative agencies and the judicial review of their decisions, the state’s consent to be sued was conditional upon the pursuance of those procedures as the taxpayers’ exclusive remedy. Great American Ins. Co. v. Gold, 254 N.C. 168, 118 S.E.2d 792, 795(2); Kleban v. Morris, supra, 247 S.W.2d 840.

We are of the opinion that company’s final contention that it has stated a claim against named defendants individually is wholly without merit. Again, the case of Kleban v. Morris, supra, 247 S.W.2d 838, 839, has decided that issue adversely to company’s contention. The Kleban opinion cited and quoted from State ex rel. American Mfg. Co. v. Reynolds, 270 Mo. 589, 194 S.W. 878. In the Reynolds case, the court said, at page 881: “In the collection of this tax the collector in the one case was the agent for the city and in the other the agent for the state. In this kind of a situation, we think the rule announced in Lewis County v. Tate, 10 Mo. [650] loc. cit. 651, is applicable. It is there said:

“ ‘The money thus collected was paid over into the county treasury. Whatever may be the liability of the county — and of this we are not authorized to give any opinion— it is clear that the collector is not liable. Where money is paid to an agent, for the purpose of being paid over to his principal, and is actually paid over, no suit will lie against the agent to recover it back.’

“In Mechem’s Public Offices and Officers, § 649, it is said:

“ ‘Where money illegally collected by col- or of law still remains in the hands of the collector, it may be recovered from him by the party paying it, but if it has been paid over by the collector to the proper authorities, he is no longer responsible for it, though it appears that he acted under an authority which was void.'

“In Cooley on Taxation (3d Ed.) p. 1482, it is further said:

“ ‘But in general, if the money, though actually collected by compulsion, is paid over to the proper receiving officer before suit brought, the collector is protected, and this principle has been applied to cases in which the officer’s authority was void for unconstitutionality or other reason.’

“This rule is supported by many cases found cited under the text, and we think it the safe rule. Of course, if the money had been in the hands of the collector at the institution of the suit, a different rule might have applied. But it had long since reached the state treasury. To hold a collector responsible individually would be a harsh rule, and one which we do not care to follow. The Legislature, upon proper application, would, no doubt, reimburse the plaintiff from the state treasury.”

In the present case, as we have stated heretofore, it is apparent from company’s averments that the tax in question “had long since reached the state treasury” and we adhere to the rule, under the circumstances here, that named defendants are not individually liable, irrespective of whether the tax in question was illegally collected.

The judgment is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by COIL, C., is adopted as the opinion of the court.

All concur.

      . All section citations refer to sections in RSMo 1959 and V.A.M.S. unless otherwise indicated.


author: HOLMAN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Lawrence STEGALL, Appellant.
    No. 48826.
    Supreme Court of Missouri, Division No. 1.
    Feb. 12, 1962.
    Robert A. Mcllrath, Flat River, for appellant.
    Thomas F. Eagleton, Atty. Gen., Phillip C. Houx, Sp. Asst. Atty. Gen., for respondent.
   HOLMAN, Commissioner.

Appellant, Lawrence Stegall, hereinafter referred to as the defendant, was found guilty of the offense of obtaining money by false pretenses and his punishment was fixed by the jury at imprisonment in the penitentiary for a period of two years. He has appealed from the ensuing judgment.

Mr. J. S. Warner, Cashier of the Bank of Leadwood, testified that the defendant came to the bank on May 21, 1959, and told him that “he was buying a new 1959 Ford station wagon and wanted to borrow some money to purchase that automobile”; that he wanted to borrow $1,200 “on that automobile”; that he had a description of the car and its motor number, C9GR125448, written on a piece of paper; that a note in the amount of $1,566.24 and a chattel mortgage describing the car were prepared and executed by the defendant; that $1,200 was then paid to defendant (the remaining $366.24 being finance charge, interest, and insurance for two years) ; that defendant thereafter made certain payments on the note so that the balance due thereon (after crediting a refund of $88.20 received when the insurance policy was cancelled) was $880.63.

Trooper C. C. Maddox of the highway patrol testified that on December 6, 1959, he talked with the defendant at the county jail and defendant stated that “he had signed a mortgage at the Bank of Lead-wood; that he had never owned a 1959 Ford Ranch Wagon, and that as far as he knew no such wagon ever existed.” Sheriff Clay Mullins testified to substantially the same statement on the part of the defendant. H. V. Henderson, field officer for the Missouri Motor Vehicle Department, testified that he had checked the records and had found no record of the registration of the automobile described in the chattel mortgage.in question.

Over the objection of defendant evidence was admitted tending to prove that defendant had committed two other allegedly similar offenses. We will hereinafter state the facts concerning that proof in our consideration of the contention that the court erred in the admission of same.

In his defense defendant testified that he bought the car described in the chattel mortgage in St. Louis from “a fellow by the name of Ellis” and had the car and a bill of sale thereto at the time he borrowed the money but did not obtain a title to the car. Defendant’s sister-in-law testified that defendant had a 1959 Ford station wagon but she never saw it after defendant’s wife “had left.”

Defendant has not filed a brief in this court so we review the assignments properly raised in his motion for new trial.

The first assignment in the motion is that the trial court should have entered a judgment of acquittal for the reason that the information failed to state an offense.

We are of the opinion that the information in this case is fatally defective. In a case of this kind the allegation is required that the party defrauded relied upon and believed in the truth of the pretenses made by the defendant and was thus induced to part with his money or property. State v. Loesch, Mo.Sup., 180 S.W. 875; State v. Workman, Mo.Sup., 199 S.W. 131; State v. Robinson, Mo.Sup., 14 S.W.2d 452. That allegation is completely omitted from the information in this case.

We have concluded, however, that the judgment should not be reversed outright but that the cause should be reversed and remanded so as to give the State an opportunity to seek leave to file an amended information or to take such other action as the prosecuting attorney may deem advisable. In that connection, we suggest that the prosecuting attorney give consideration to the question as to whether, under the evidence presented at the trial and any other evidence that may be available, the charge should be under Section 561.450 or Section 560.156 (unless otherwise indicated all statutory references are to RSMo 1959, V.A.M.S.).

This court, in discussing the section now designated as § 561.450 has stated that its pujóse was “to provide for a class of false representations not included in some other section dealing with the subject of the ordinary false representations. It was intended to reach a class of offenders known as 'confidence men,’ who obtain the money of their victims by means of, or by the use of, some trick or representation designed to deceive.” State v. Wilson, 223 Mo. 156, 122 S.W. 701, 704. See also State v. Weber, Mo.Sup., 298 S.W.2d 403, and State v. Weber, Mo.Sup., 302 S.W.2d 919. Prior to 1955 cases involving so-called “ordinary” false representations were usually founded on Section 561.370, RSMo 1949, V.A.M.S. That section was one of many sections repealed, Laws of Missouri 1955, p. 507, at the time of the enactment of the new “stealing” law, now § 560.156. This last-mentioned section provides, in part, that “It shall be unlawful for any person to intentionally steal the property of another, either without his consent or by means of deceit.” We have said that the real purpose of Section 560.156 is to eliminate technical distinctions between larceny, embezzlement, and obtaining money under false pretenses. State v. Zammer, Mo.Sup., 305 S.W.2d 441. It would seem to have been the intent of the legislature that prosecutions involving “ordinary” false representations would thereafter be prosecuted under the provisions of Section 560.-156. The case of State v. Murphy, Mo.Sup., 347 S.W.2d 230, involving false pretenses, was a prosecution under that section.

Although the information in the case at bar does not contain the words “trick” or “confidence game,” it was regarded in the trial court as charging an offense under Section 561.450 as indicated by the instruction setting out the penalty. Any charge hereafter filed should contain averments which will enable the defendant to readily determine the section under which he is charged.

Since the case may be retried we should briefly discuss defendant’s assignment that the evidence concerning alleged similar offenses should not have been admitted.

“ ‘It is established by the great 'weight of authority that in a prosecution for false pretenses, evidence that the accused, at about the time of the offense charged, made similar false representations or engaged in similar fraudulent dealings is admissible as tending to show a fraudulent intent or motive in the transaction on which the prosecution is based, as where a plan or scheme to defraud other victims than the complaining person or persons is indicated.’ 22 Am.Jur. False Pretenses, Section 109, p. 506. We have often held that in prosecutions for obtaining money or property by false pretenses evidence that defendant committed or attempted similar offenses is admissible, if not too remote, in order to prove the criminal intent of the accused. State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198; State v. Hotsenpillar, 359 Mo. 1031, 224 S.W.2d 1014; State v. Neal, 350 Mo. 1002, 169 S.W.2d 686; State v. Craft, 344 Mo. 269, 126 S.W.2d 177; State v. Michels, Mo.Sup., 255 S.W.2d 760; State v. Jackson, 112 Mo. 585, 20 S.W. 674.” State v. Gilpin, Mo.Sup., 320 S.W.2d 498, 501.

Evidence was admitted which tended to show that on July 26, 1960, defendant obtained possession of a load of junk automobile motors from Oscar Chat-man by means of a false pretense. That occurrence was more than 14 months after the alleged commission of the offense for which defendant was on trial. We are of the opinion that the Chatman offense was entirely too remote to be admissible in this case upon the issue of defendant’s criminal intent.

The other alleged offense occurred on July 12, 1958, and grew out of a joint enterprise between defendant and Ben Patterson. Patterson testified that he furnished $110 for the purchase of 85 old batteries and that defendant furnished the truck to haul them and they were to divide the profits; that defendant sold the batteries when he was not present and kept the money. We need not determine what offense, if any, defendant committed upon that occasion. It is obvious that no false pretense was shown. In view of the fact that this alleged offense occurred more than ten months before the Bank of Lead-wood transaction and did not involve a similar factual situation, we have concluded that evidence of that occurrence should not have been admitted.

Reversed and remanded.

COIL and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by HOLMAN, C., is adopted as the opinion of the court.

All concur.