author: EAGER, Presiding Judge.

text:
    Arthur SCHULTE, Appellant, v. MISSIONARIES OF LA SALETTE CORPORATION OF MISSOURI, a corporation, LaSalette Seminary, Jefferson City, Missouri, and Missionaries of Our Lady of LaSalette, a corporation, Ipswich, Massachusetts, Respondents.
    No. 48443.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1961.
    Motion to Transfer to Court en Banc or for Rehearing Denied Jan. 8, 1962.

      Anthony P. Nugent, Jr., Kansas City, and Henry BalkenBush, Linn, for appellant; Winger, Nugent & Rayburn, Kansas City, of counsel.
    Rozier, Carson & Nacy, Jefferson City, for respondents.
   EAGER, Presiding Judge.

Plaintiff filed this suit for personal injuries against Missionaries of LaSalette Corporation of Missouri, LaSalette Seminary, and Missionaries of Our Lady of La-Salette, a Massachusetts Corporation. The record does not show that the second defendant named is a separate entity, but a motion to dismiss was filed in its name. Plaintiff has expressly abandoned the action here as against the last-named defendant. Separate motions to dismiss were filed for each defendant, the trial court found that the petition failed to state a claim upon which relief could be granted, and the petition and the cause were dismissed. Plaintiff, after an ineffectual motion, appealed, but prosecutes the appeal only as against Missionaries of LaSalette Corporation of Missouri, to which we shall hereafter refer as the defendant. In support of its motion to dismiss defendant produced a witness who testified to certain more or less formal facts, none of which are contested. From this it was developed: that defendant, a Roman Catholic Order, owns the property in Jefferson City upon which a boys’ seminary is located and operated; that this is operated solely for the training of youths as priests or missionaries to serve both in this and foreign countries; that the sole purpose is to spread the Catholic faith; that those students who are financially able •to do so pay $250 per year, plus $25 for books, which does not begin to cover their actual expenses; that some pay less, and some pay nothing; that the Order solicits and receives donations, and the priests in the Order send in sums which they have received; that there is no profit whatever; that the swimming pool where plaintiff was injured (he alleges negligence in failing to warn that the pool was only partly full, and consequently a lack of proper supervision) was maintained for the students and faculty, with perhaps an occasional guest, but with no fees; it was not open to the public. In a rather vague answer this witness stated that he believed they did have a public liability insurance policy. It is in substance conceded that defendant is a true charitable corporation, organized under the “Benevolent, Religious” etc. statutes in 1948 (§§ 5436-5465 RS 1939, now Ch. 352, RSMo 1959, V.A.M.S.) and that it has and maintains no commercial activities whatever. Plaintiff was seriously injured but we need not develop that here. Since the suit was for damages in the amount of $125,000, we have jurisdiction.

Plaintiff very frankly attacks our whole doctrine of charitable immunity. Counsel say, in substance: that the rule at its inception in Missouri had no proper basis in law or public policy, that the legislature has in certain enactments declared a public policy to the contrary, and that the rule of stare decisis does not require the court to adhere to the doctrine. Certain more specific contentions will be referred to later.

Our cases declaring the doctrine of immunity are so well known to the Bar that we shall not review them individually in any great detail. In 1907 the Kansas City Court of Appeals decided Adams v. University Hospital, 122 Mo.App. 675, 99 S.W. 453. Therein (in a suit by a patient) it held: that such charitable funds constitute a trust for the alleviation of suffering and should not be diverted to the payment of damages; that patients, as beneficiaries of the trust, accept the benefits of a charity upon an implied assurance that they would assert no complaint against it; and that to permit such diversions would tend to lessen contributions to the charity. It may fairly be said also that the court relied upon what it found to be a sound public policy, relying in part upon opinions which it cited from other states (loc. cit. 456). The Adams case has been followed in the following Missouri cases: Nicholas v. Evangelical Deaconess Home and Hospital, 281 Mo. 182, 219 S.W. 643; Whittaker v. St. Luke’s Hospital, 137 Mo.App. 116, 117 S.W. 1189; Roberts v. Kirksville College of Osteopathy & Surgery, Mo.App., 16 S.W.2d 625; Eads v. Young Women’s Christian Ass’n, 325 Mo. 577, 29 S.W.2d 701; Stedem v. Jewish Memorial Hospital Ass’n of Kansas City, 239 Mo.App. 38, 187 S.W.2d 469; Dille v. St. Luke’s Hospital, 355 Mo. 436, 196 S.W.2d 615; Kreuger v. Schmiechen, 364 Mo. 568, 264 S.W.2d 311 (involving a church); and Blatt v. George H. Nettleton Home for Aged Women, 365 Mo. 30, 275 S.W.2d 344 (establishing an exception for commercial operations). The Missouri authorities up to 1946 are ably reviewed in Dille, supra. The net result of this line of cases has been that Missouri grants immunity from liability in negligence actions to a true charity in the activities and operations of the charity itself, as distinguished from some commercial enterprise in which it may invest its funds and which it operates. Blatt, supra. Missouri has proceeded both upon the trust fund theory and that of a broad public policy; even the waiver theory and the inapplicability of the rule of respondeat superior have been mentioned. But in Dille, supra, this court said (196 S.W.2d loc. cit. 620): “While the cases seem to treat the two theories, trust fund and public policy, under separate heads, the distinction between them is more apparent than real. At bottom they are the same, the trust fund doctrine being, as some of the cases say, the ‘child’ or ‘offspring’ of the doctrine [of] public policy. This is also true as to the nonapplicability of the rule of respon-deat superior. The Virginia Supreme Court of Appeals in the St. Vincent Hospital case, supra, [Weston v. Hospital of St. Vincent of Paul, 131 Va. 587, 107 S.E. 785, 23 A.L.R. 907] aptly stated the matter thus: ‘The determination of a number of courts * * * that there should be absolute immunity in all cases, and which came to be known as the “trust fund theory,” was nothing more than saying that the immunity was granted from reasons of public policy; that on the whole the public would be best served by the application of this theory.’ ” And the court there also (196 S.W.2d loc. cit. 616) outlined the differing theories of or reasons for immunity. It may thus be, as plaintiff now so ardently contends, that the real and sole basis of our doctrine of immunity is public policy; the opinion in Blatt, supra, so states. Essentially, this means that the State considers that it is better for the public generally that charities be permitted to continue their activities for the benefit of all the people without depletion of their funds by the payment of the damage claims of certain individuals.

Counsel for plaintiff roundly criticize the doctrine of immunity, and specifically the Adams case. As to the latter, they say that it relied on English dicta later repudiated, that there was no legislation on the subject, and that the opinion had no basis in any “announced public policy,” but merely expounded the “personal opinion of a judge.” We may accept, for present purposes, counsel’s statement that public policy means that “no one can lawfully do that which tends to be injurious to the public or against the public good; * * *." Brawner v. Brawner, Banc, Mo., 327 S.W.2d 808, 812; also, that the expression of public policy should be looked for and found in the “Constitution, statutes, or judicial decisions of the state or nation, and not in the varying personal opinions and whims of judges or courts, * * *." In re Rahn’s Estate, 316 Mo. 492, 291 S.W. 120, 123, 51 A.L.R. 877, certiorari denied 274 U.S. 745, 47 S.Ct. 591, 71 L.Ed. 1325. But, in the absence of legislation, the courts have the power and the duty to declare the public policy of a state, and for that purpose may, if necessary, look to authorities outside the state. In their criticisms of the Adams case counsel have attributed to Judge Ellison an expressed antipathy to damage claims which is wholly unjustified; what he said was confined solely to the matter of subjecting charitable funds and assets to the payment of such claims. They seem to argue further that because there was no established law on the subject in Missouri in 1907, a declaration of the doctrine by the court was wholly baseless and, presumably, ineffective. If that were true, a court could never declare a matter of public policy in the first instance, without legislation. Questions involving matters of public policy do occasionally confront our courts in a total absence of constitutional or legislative mandates. Landgraver v. Emanuel Lutheran Charity Board, 203 Or. 489, 280 P.2d 301, 302. In those instances they have the right and the duty to declare what they deem to be the public policy, looking to all such sources as are available; and once declared, this is just as binding as a legislative enactment. See, Landgraver, supra, citing numerous authorities. The court in Adams did so, and the opinion is no expression of a mere whim or “personal opin-ionThe court there cited decisions of the courts of several other states in support of its ruling, and we are not particularly concerned with the legitimacy or illegitimacy of the brain child of the House of Lords as expressed in Heriot’s Hospital v. Ross, 12 Clark & F. 507; considerable controversy has raged around the English cases and the supposed origin of the doctrine. See, Gregory v. Salem General Hospital, 175 Or. 464, 153 P.2d 837, 844; President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810, 815 et seq.; 5 St. Louis University Law Journal, 357 et seq.; 25 A.L.R.2d 29, 38-39 note. We are not so much interested in the historical origin of the doctrine as we are in the fact that more than half a century ago our courts (and sundry others in the United States before or after that) declared this rule of immunity, primarily as a rule of public policy, in the absence of legislation and of any indicated contrary legislative intent, and that this doctrine has been consistently followed in Missouri ever since. See, Muller v. Nebraska Methodist Hospital, 160 Neb. 279, 70 N.W.2d 86, loc. cit. 91. In its origin the doctrine was a valid declaration of public policy and it has been corroborated and strengthened with each succeeding opinion through all these years.

At this point we note that in the 1957 and 1959 Missouri Legislatures bills were introduced to nullify or restrict the immunity. The 1957 Senate Bill (No. 153) proposed to preserve the immunity as to the charity, but to permit the substitution of any existing liability insurer as a defendant. It was never reported out of the Judiciary Committee. The 1959 House Bill (No. 415) very frankly provided that the charitable nature of a defendant should “not be a defense.” This bill, with amendments, was tabled on the House floor and died on the calendar, never being perfected. We must presume that the legislature was cognizant of our decisions. Counsel say, with extreme frankness, that: “The facts of life, as this court well knows, made it highly improbable that such legislation would ever pass. Imagine the furor that would be raised if a bill were introduced in our General Assembly suggesting that our hospitals, schools, churches and other immune institutions be made liable for their torts! It would take a veritable daredevil of a legislator to vote for the bill, not to mention introduce it.” This statement is, to us, an admission that the public policy of Missouri would, and does, oppose the destruction of the presently existing immunity. Legislators are elected to represent and vote the will of the people, — all the people, not individual claimants. If the legislators who so acted in 1957 and 1959 did not truly represent the will of the people, we may assume that the people will elect others. Mere inaction of the legislature has been construed as an approval of the doctrine of immunity as declared by a line of court decisions. Gregory v. Salem General Hospital, 175 Or. 464, 153 P.2d 837, 845; Landgraver, supra; Memorial Hospital, Inc. v. Oakes, 200 Va. 878, 108 S.E.2d 388, 396. Here we have more, — an express refusal of the legislature to act; the words of the court in Martino v. Grace-New Haven Community Hospital, 146 Conn. 735, 148 A.2d 259, 260-261, are appropriate: “The plaintiff contends that the doctrine of charitable immunity, so far as it applies to charitable hospital corporations, should be abandoned. In 1955 an effort was made in the legislature to change the law. The bill in question was reported unfavorably and rejected. * * * '‘The rejection by the legislature of a bill designed to overrule a judicial precedent by legislative enactment furnishes strong reason for the court’s refusal to reverse the precedent.’ McDermott v. St. Mary’s Hospital Corporation, 144 Conn. 417, 422, 133 A.2d 608, 611.”

In the face of these express refusals of our legislature to repeal or limit the doctrine of immunity, counsel say that the legislature has inferentially done so, and that it has declared a contra public policy in other legislation. This would seem to imply that it has hidden its real intention “under the table.” To such purpose he cites the Motor Vehicle Safety Responsibility Act (Ch. 303, RSMo 1959, V.A.M.S., Laws 1945), the Workmen’s Compensation Law (Ch. 287, RSMo 1959, V.A.M.S., Laws 1925), the Employment Security Law (Ch. 288, RSMo 1949, V.A.M.S., Laws 1951), and the Not for Profit Corporation Law (Ch. 355, RSMo 1959, V.A.M.S., Laws 1953). It is a little difficult for us to follow some of this reasoning. Counsel say, however, that in failing to exempt charitable corporations and associations from the requirements of the Motor Vehicle and Workmen’s Compensation Laws, these being statements of broad public policy, the legislature has evidenced an intention to repeal the immunity. We hold that if it has thus done so to any extent, and we do not now pass on that question, it has only thereby affected the particular activities expressly covered in those enactments, i. e., the operation of automobiles and the compensation of injured employees. (We note here that Workmen’s Compensation liability exists wholly independently of negligence or common law tort liability.) Our view is fully corroborated by the fact that long subsequent to both of those enactments, and after our doctrine of immunity had been stated to rest upon public policy (Dille, Blatt, supra) the legislature expressly refused to abolish the general rule of immunity as declared by our courts. In the Employment Security Law, charitable corporations were expressly exempted from the tax. Section 288.034(6) (f). Counsel merely argue from this that in each act “ample thought” is given to the matter of charities. This argument is certainly not persuasive. The “General Not for Profit Corporation Law” includes many corporations not strictly charitable. See “Purposes” covered in § 355.025. Plaintiff seems to rely on the provision therein permitting such corporations “to sue and be sued, complain and defend * * Section 355.090 (2), the power, which counsel infer, to buy liability insurance, and the absence therein of any stated immunity for charitable corporations. The present defendant was not incorporated under that law but under the “Benevolent, Religious” etc. Associations Act (now Ch. 352) in 1948 by pro forma decree; there is no contention whatever that it was not properly organized under that act, or that it is not, in fact, strictly a charity. We wholly fail to see that the Nonprofit Act declares any public policy inimical to our declaration of public policy regarding true charities, and we hold that it does not. That act and our rule of immunity may supplement each other, but they do not conflict.

No provision of our Constitution, 1945 or 1875, constitutes a declaration of public policy contrary to our rule of immunity. The permissive exemption of charities from taxation (Art. 10, § 6, 1875; Art. 10, § 6, 1945, V.A.M.S., the latter much broader) indicates a studied intent to favor and exempt charities rather than to impose any additional liability. See, generally, Muller v. Nebraska Methodist Hospital, 160 Neb. 279, 70 N.W.2d 86; Landgraver v. Emanuel Lutheran Charity Board, 203 Or. 489, 280 P.2d 301. Nor do we construe the rule of immunity to be in any way a violation of §§ 13 or 14 of Art. 1, Mo. Constitution 1945, the former of which proscribes the “making any irrevocable grant of special privileges or immunities,” and the latter of which provides that the courts of justice shall be open to every person and “certain remedy afforded for every injury * * As to § 13 see, generally, State ex rel. Jones v. Nolte, 350 Mo. 271, 165 S.W.2d 632, 638; the “privileges” prohibited are those granted to individuals, not to charities as a class, charities being expressly recognized in Art. 10, § 6, as indicated. Section 14, Art. 10, was never intended to create rights, but merely to protect citizens in enforcing rights recognized by the law, without discrimination. DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640, 645-646; State ex rel. National Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418, 424; Muller v. Nebraska Methodist Hospital, 160 Neb. 279, 70 N.W.2d 86, 91; Kreuger v. Schmiechen, 364 Mo. 568, 264 S.W.2d 311, 314. We are not impressed with the logic of the incidental statement in Nicholson v. Good Samaritan Hospital, 145 Fla. 360, 199 So. 344, 133 A.L.R. 809, supposedly to the contrary. It is not applicable here. In their reply brief, counsel for plaintiff argue that the immunity doctrine violates the due process clauses of both the Missouri and federal constitutions. No such contention was included in the rather elaborate points of their original brief and the issues on this appeal may not be so expanded; the respondent should be afforded a fair opportunity to answer all points and all arguments. Magenheim v. Board of Education, Mo., 340 S.W.2d 619; Berghorn v. Reorganized School Dist. No. 8, 364 Mo. 121, 260 S.W.2d 573; Rule 83.05(a) (e), V.A. M.R. This does not mean that we see any substance in the contention. We have been liberal in considering the constitutional points briefly discussed above, for they were inadequately included in the appellant’s points in his original brief.

On his basic contention that the doctrine of immunity is wrong and should be repudiated, plaintiff cites several recent decisions, including: Kojis v. Doctors Hospital, 12 Wis.2d 367, 107 N.W.2d 131 (1961); Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3 (1957); Collopy v. Newark Eye and Ear Infirmary, 27 N.J. 29, 141 A.2d 276 (1958); Pierce v. Yakima Valley Memorial Hospital Ass’n, 43 Wash.2d 162, 260 P.2d 765 (1953); Mullikin v. Jewish Hospital Ass’n, Ky., 348 S.W.2d 930, and President and Directors of Georgetown College v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810. There is no doubt that in these cases the courts did repudiate the doctrine of charitable immunity, on varying reasoning; but we note that in all five states the doctrine had been restricted previously, in some very severely. In New York the courts had recognized liability for “administrative” negligence but not for “medical” negligence, an almost impossible and unworkable distinction from a practical standpoint; and the immunity was apparently limited also to hospitals only (143 N.E.2d loc. cit. 8). It seems clear that this former New York rule was more or less of an evasion or, in the words of the court, “difficult and elusive” and a “compromise.” In New Jersey the immunity had previously been applied only where suit was filed by a beneficiary (patient, etc.) and not by a stranger, a rather illogical distinction, it would seem, though often followed. Also, in the same year, the New Jersey Legislature restored the immunity to all charities (again confining it to “beneficiaries”) except that hospitals might be liable to the extent of $10,000, but no more. In Wisconsin the previous rule had apparently been rather severely restricted; the decision permitting recovery was confined to “ * * * a paying patient seeking recovery from a charitable hospital * * *." [12 Wis.2d 367, 107 N.W.2d 134] In Pierce, supra, the doctrine of immunity had previously been very much limited, — to beneficiaries, and then not available in cases of “administrative” negligence or where a servant was negligently selected or retained; thus, as the court said, the rule had already been “ ‘devoured’ with exceptions” (loc. cit. 772) ; apparently the decision was confined to the case of a paying patient in a nonprofit hospital. In two of these cases there were vigorous dissents, in another, a dissent without opinion, and in another a concurrence in result which constituted a dissent from the total rejection of immunity. In Roberts, the opinion did not receive a majority vote of the six judges; three concurred in the result only, on the ground that the plaintiff was a stranger to the charity and thus entitled to recover under a limited theory of immunity without the necessity of considering the doctrine further.

Other recent cases might he added to' those just discussed, as showing rejections of the doctrine of immunity; usually, however, it had been restricted rather severely in earlier cases. See, Moeller v. Hauser, 237 Minn. 368, 54 N.W.2d 639, 57 A.L.R.2d 364 (1952); Mississippi Baptist Hospital v. Holmes, 214 Miss. 906, 55 So.2d 142, 56 So.2d 709, 25 A.L.R.2d 12 (1951); Foster v. Roman Catholic Diocese of Vermont, 116 Vt. 124, 70 A.2d 230, 25 A.L.R.2d 1 (1950); Roman Catholic Church, Diocese of Tucson v. Keenan, 74 Ariz. 20, 243 P.2d 455 (1952). It is said that nineteen jurisdictions (whether all are states of the union we do not know) -have abandoned the doctrine since 1942, in so far as it concerns charitable hospitals. American Bar Ass’n Journal; May 1961, Vol. 47, p. 515. We have neither the time nor the space to discuss all those authorities. It might well be said that some courts have found themselves so enmeshed in illogical and unworkable exceptions to the doctrine that they considered its abolition as the only means of escape. On the other hand, the following states have recently, upon reconsideration, refused to reject the doctrine of charitable immunity. Cabbiness v. City of North Little Rock, 228 Ark. 356, 307 S.W.2d 529 (1957), reaffirmed in Helton v. Sisters of Mercy, etc., Ark., 351 S.W.2d 129, Oct. 30, 1961; Landgraver v. Emanuel Lutheran Charity Board, 203 Or. 489, 280 P.2d 301 (1955); Martino v. Grace-New Haven Community Hospital, 146 Conn. 735, 148 A.2d 259 (1959); Muller v. Nebraska Methodist Hospital, 160 Neb. 279, 70 N.W.2d 86 (1955); Springer v. Federated Church of Reno, 71 Nev. 177, 283 P.2d 1071 (1955); Knecht v. St. Mary’s Hospital, 392 Pa. 75, 140 A.2d 30 (1958); Penaloza v. Baptist Memorial Hospital, Tex.Civ.App., 304 S.W.2d 203 (1957); Meade v. St. Francis Hospital of Charleston, 137 W.Va. 834, 74 S.E.2d 405 (1953); Williams v. Randolph Hospital, Inc., 237 N.C. 387, 75 S.E.2d 303 (1953); Mastrangelo v. Maverick Dispensary, 330 Mass. 708, 115 N.E.2d 455 (1953); Memorial Hospital, Inc. v. Oakes, Adm’x, 200 Va. 878, 108 S.E.2d 388 (1959); Cornelius v. Sinai Hospital of Baltimore, Inc., 219 Md. 116, 148 A.2d 567 (1959).

A rather comprehensive table of the rulings of the different states on this'subject appears in the appendix to an article in 5 St. Louis University Law Journal at p. 369 (1959). Those interested may find there at least an approximation of the present score. However, we are not going to decide this case by “counting the noses” of the states, pro and con, but on what we deem to be the accepted public policy of Missouri and the best interests of its people, generally." Running predominantly through the opinions refusing all charitable immunity, are such statements as the following: that liability insurance is available and is usually carried; that the courts are “not informed” that hardships or calamities have ensued where liability is recognized (N. Y., Wash., D. C.); that today’s hospitals are quite different from those of prior years, with wide community support, many employees, and business-like operations; and also that the trend is to shift the burden from innocent victims to the community at large. (Many of the opinions rejecting immunity are apparently considering only the effect of the rule as applied to hospitals.) On the contrary, the courts upholding immu-i nity in whole or in part, and sundry dissenting opinions in others, suggest, generally : that the question concerns the abolition of a declared principle of long standing public policy, which, once declared by the courts, is just as effective as a legislative act; that the failure of the legislature to act, it knowing full well of the decisions, compels an inference of approval; that if the doctrine is to be abolished after being so firmly adopted and adhered to, the action should come from the legislature; that many charities have not availed themselves of insurance and that, in any event, the existence of insurance (in the absence of statute) should make no difference in liability, and that the courts which refer to the lack of hardship in states refusing immunity have no evidence or statistics to support the statement, are not in position to know, and are merely speculating.

As the court well stated in Muller v. Nebraska Methodist Hospital, 160 Neb. 279, 70 N.W.2d 86, 93, certainly not all of our charities are big businesses, generously endowed (as some of the opinions indicate), and thus able to absorb substantial losses. Throughout Missouri we have many small charities which certainly have not, and never will, reach the suggested status of affluence, — religious, cultural, educational, medical and those strictly benevolent in the sense of aiding the poor and needy. Unlike those courts which have so confidently spoken, we are not so omniscient as to forecast accurately the result, upon such institutions, of the abolition of our rule. Nor do we agree with the apparent theory of some that private charity is a “ ‘thing of the past and that all burdens of suffering humanity should be placed in the lap of government, state and federal.’” Muller v. Nebraska Methodist Hospital, supra. There is absolutely nothing in the facts of the present case calling for a limitation of, or further exception to, our doctrine.

We have considered counsel’s so-called “Practical Reasons” for the abolition of immunity, but they require nothing more than what has already been said. Counsel argue at length that we are not bound by the doctrine of stare decisis. We may assume that, for present purposes, although the prevailing doctrine should be adhered to “ ‘ * * * unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and mischievous or unless more harm than good will result from doing so.’” Muller v. The Nebraska Methodist Hospital, supra. And, as our own court said in Brawner v. Brawner, Banc, Mo., 327 S.W.2d 808, 814, referring to the spousal immunity from suit: “It affects more than private rights, 26 Am. Jur. 633, Husband and Wife § 4, and should not be lightly disturbed.” We need not seek refuge in the doctrine of stare decisis here. We have declared and have long adhered to the doctrine of immunity as applied to true charities in their charitable operations, and we see no such change of circumstances, conditions or public policy, as to cause us to reject it now. The origin of the Missouri doctrine has been questioned here; we are convinced that it was sound, but in any event, each succeeding case has corroborated and re-declared it. In these circumstances, and particularly in view of the legislature’s failure to act for fifty years and its outright refusal to repeal or limit the immunity thereafter, we are firmly convinced that any future change should come by legislative action. The difficulty in procuring such action is a matter wholly outside the scope of our endeavors.

Counsel have, rather casually, argued the existence of liability insurance; we suspect that this is, beneath the surface, strongly relied on. We have held specifically in Dille v. St. Luke’s Hospital, 355 Mo. 436, 196 S.W.2d 615; Stedem v. Jewish Memorial Hospital Ass’n of Kansas City, 239 Mo.App. 38, 187 S.W.2d 469, and Kreuger v. Schmiechen, 364 Mo. 568, 264 S.W.2d 311, that this is immaterial on the issue of liability. See also: Clarke v. Organ, Banc, Mo., 329 S.W.2d 670, 674; Baker v. Baker, 364 Mo. 453, 263 S.W.2d 29. No reason is presented now which causes us to feel that those authorities should be re-examined. Nor does the possibility of procuring insurance persuade us that a decision on the public policy question should be otherwise. As a practical matter, some charities may not be able (financially or because of refusals to carry the risk) to procure insurance, and some may, as often happens, encounter a refusal to renew after one or more losses. It is idle to assume that insurance is a cure-all for the ills and liabilities of charitable institutions, particularly when we speculate upon what the cost may be if full liability should be recognized.

The judgment will be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: HOLMAN, Commissioner.

license: Public Domain

text:
    Alex BERGER, Jr. et al., Plaintiffs-Appellants, v. MERCANTILE TRUST COMPANY, a Corporation et al., Defendants-Respondents.
    No. 48567.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1961.
    Motion for Rehearing or to Transfer to Court en Banc Denied Jan. 8, 1962.

      J. Marvin Krause, St. Louis, Nouss, Bamburg & Gaebe and Harold B. Bam-burg, Clayton, for appellants.
    Thompson, Mitchell, Douglas & Neill, James M. Douglas, Robert Neill, William G. Guerri, St. Louis, for respondents.
   HOLMAN, Commissioner.

In this class action plaintiffs, as owners of certificates of beneficial interest in a certain trust, sought (in the first count of their petition) to recover all of the stock of Mercantile-Commerce National Bank in St. Louis (hereinafter referred to as “National Bank”). In the second count they alternatively sought to recover damages for breach of trust in the sum of $3,638,323.57 from certain individual trustees of a 1934 trust. A third count of the petition will not be further referred to as, for the purposes of this appeal, we regard it substan-' tially the same as Count I. A trial resulted in a judgment for defendants upon all counts. Plaintiffs have duly appealed.

This is the second case to reach this court involving the rights of owners of certificates of beneficial interest in the trust hereinafter described. The main controversy in the first case related to the amount required to be paid by Mercantile-Commerce Bank & Trust Company, now Mercantile Trust Company (each hereinafter referred to as “Trust Company”), to the trustees as the purchase price of the stock of National Bank upon the exercise of the option to purchase said stock which was contained in the trust agreement dated June 11, 1934. In disposing of the appeal in that case we held that said trust company should have paid the trustees $76,132.67 more than had been paid. Moser v. Keller, Mo.Sup., 303 S.W.2d 135.

The individual plaintiffs in the first case were Byron Moser and Rosa Cerf Berger. They sued for themselves and in behalf of all other persons holding certificates of beneficial interest in the trust estate. The plaintiffs in the present case are Byron Moser and Alex Berger, Jr. (the son of Rosa Cerf Berger). They also sue for themselves and as representatives of the other beneficiaries of the said trust estate.

The factual background which formed the basis of the plaintiffs’ claims in each case is stated in the opinion of this court in the first case as follows (303 S.W.2d 136, 137, 139):

“In 1929 two St. Louis banks consolidated. The Mercantile Trust Company and the National Bank of Commerce formed the Mercantile-Commerce Bank and Trust Company. The charter of the National Bank of Commerce was retained to facilitate the transfer of fiduciary duties to the new bank. The capital of the National Bank of Commerce was reduced to $350,000; consisting of 3,500 shares of $100 par value stock and a surplus of $75,000. The Mer-eantile-Commerce Bank and Trust Company owned all of that stock. In August 1930, the Mercantile-Commerce Bank and Trust Company opened a subsidiary bank in midtown St. Louis under the retained charter of the National Bank of Commerce and changed the name of the new bank to the Mercantile-Commerce National Bank in St. Louis (hereinafter referred to as ‘National Bank’).
“In 1933 the board of governors of the Federal Reserve System directed Mercantile-Commerce Bank and Trust Company (that bank and its successor, Mercantile Trust Company, will be hereinafter referred to as ‘Trust Company’) to divest itself of the ownership of the shares of stock of National Bank. As a result, and contrary to the contention of Trust Company as to the legality of its ownership of the stock of, and the operation of, National Bank, Trust Company complied with that order to the extent herein described. On June 11, 1934, Trust Company entered into a trust agreement whereby it transferred title to the 3,500 shares of National Bank’s stock to five trustees. Those five trustees were directors of the Trust Company. They continued as such trustees until the termination of the trust. They are named in the caption hereof, although, since this appeal, two of them died and their respective executors were substituted.
“Pursuant to the terms of the trust, the trustees issued to Trust Company 100,000 certificates of shares of beneficial interest in the trust estate. Trust Company in turn declared a dividend in kind on its 100,000 outstanding shares of stock whereby each of its shareholders received one such certificate for each share of stock. The trust instrument provided that the owners of certificates would, upon distribution of the trust estate, be entitled to one one-hundred-thousandth of the corpus for each certificate he held. The certificates as issued referred to the fact that the trust agreement was- on file with Trust Company as agent for the trustees and to the fact that the trust agreement was made a part of the certificate. The certificates were negotiable and were traded in over-the-counter transactions so that at the trust’s termination they were held by 2,205 persons residing in a widespread geographical area.
“By Article V of the trust agreement, the trustees gave Trust Company an irrevocable option to purchase from trustees all or any part of the stock of National Bank at any time prior to the termination of the trust which, except for such option termination, was to end on June 11, 1954. On June 6, 1951, Trust Company exercised its option and on that same date gave trustees the 30-days’ notice thereof as provided for in the trust instrument. Pursuant to that notice, the trustees met on June 6 and entered into a written agreement for the sale of the stock to Trust Company.
“Article V of the trust agreement provided a method for determining the price which Trust Company was to pay for the National Bank stock in the event it exercised its purchase option. That provision with respect to price (which, as will appear, is the basis of the controversy in this case) was: ‘The price to be paid by said Trust Company upon the exercise of such option shall be the book value of the shares of stock so purchased as of the date of the exercise of the option. * * * ’ * * *
“On June 22, 1951, the trustees voted to then distribute to the holders of the certificates for shares of beneficial interest $12 for each such share, to distribute any balance as soon as practicable after Tuly 6, 1951 * * *.
“The trustees and the Trust Company accepted the adjusted book value approved by Price, Waterhouse & Company of $1,-767,829.76 as the total price to be paid for the stock. The trustees, after approving expenses incurred in the sum of $6,422.90, voted to distribute the additional cash received, either by a first and final payment of $17,614 to the certificate holders who had not theretofore received the $12 partial distribution, or by a second- and final payment of $5,614 per share to. .those who had received the $12 partial distribution.”

The day after the exercise of the option, Trust Company transferred the National Bank stock to Mercantile-Commerce Company, its wholly owned subsidiary. On June 14, 1951, Trust Company transferred all of the stock of Mercantile-Commerce Company to Hord Hardin et al. as trustees for the stockholders, from time to time, of Trust Company.

The defendants in the instant case are Mercantile Trust Company, Mercantile-Commerce Company, three of the trustees (or the executors of their estates) of the 1934 trust, and the various trustees of the stock of Mercantile-Commerce Company.

The first suit was filed on August 31, 1951, and was terminated with the entry of a final judgment on June 27, 1957, in accordance with our mandate. The present case was filed on June 4, 1956, while the first case was pending on appeal.

Upon this appeal plaintiffs contend that the trial court should have entered a judgment in their favor on the first count because the option contained in the 1934 trust agreement was void and Trust Company was not entitled to enforce it. Their main reasons for contending that the option was void are (1) that it violated the federal laws prohibiting the purchase of corporate stocks by banks (see 12 U.S.C.A. §§ 24, 335); (2) violated § 362.105(1), RSMo 1959, V.A.M.S., which provides that “ * * * no bank shall maintain .in this state a branch bank * * * ”; and (3) because it was contrary to the public policy of the United States and the State of Missouri.

Defendants here contend that the option agreement was valid and that the reasons advanced by plaintiffs in asserting that it was void are all unsound. Primarily, however, defendants rely upon their pleaded affirmative defense that plaintiffs made an irrevocable election of remedies in suing for and recovering the book value of the-stock pursuant to the option and therefore cannot maintain this inconsistent action seeking the return of the stock or damages for breach of the trust.

We are of the opinion that the defense of election of remedies is applicable in this case and that plaintiffs are therefore precluded from maintaining this action. “Election is simply what the term imports — a choice shown by an overt act between two or more inconsistent rights, either of which may be asserted at the will of the chooser alone. * * * The doctrine is applicable where an aggrieved party has two remedies by which he may enforce inconsistent rights growing out of the same transaction and, being cognizant of his legal rights and of such facts as will enable him to make an intelligent choice, brings his action by one of the methods. Under such circumstances, the law says he shall not thereafter adopt the alternate remedy, for a suitor cannot pursue a remedy which predicates his case upon one theory of right and thereafter seek a remedy inconsistent with such prior- proceeding.” 18 Am.Jur., Election of Remedies, § 3, pp. 129, 130. “Although mere institution of suit does not constitute a conclusive and irrevocable election of remedies, it has long been settled that, where a party, having the right to pursue one of two inconsistent remedies, makes his election, institutes suit, and prosecutes it to final judgment, he cannot thereafter pursue another and inconsistent remedy, irrespective of whether such judgment has been for or against the electing party. ‘ “ ‘The basic concept of the doctrine of election is that a party shall not be permitted to insist at different times upon the truth of two inconsistent and repugnant positions, according to the promptings of his own interest, as to first affirm and later disaffirm a contract, or the like.’ ” ’ [Davis v. Hauschild, Mo., 243 S.W.2d 956, 959-960]; or, as our courts, borrowing from the vernacular of the Scotch, have stated it, a party may not both approbate and reprobate.” King v. Guy, Mo.App., 297 S.W.2d 617, 622.

When Trust Company elected to exercise its option to purchase the stock in question plaintiffs, as beneficiaries of the trust, had at least two remedies. They could have taken the position (as here) that the option was void and could have filed a suit seeking to set aside the sale of the stock. However, they did not do so. They elected to institute an action in which they sought to establish the correct purchase price (book value) which Trust.Company should have paid the trustees for the stock upon the exercise of the option and which they alleged was at least $250,463 more than had been paid. Plaintiffs (we use said designation to include all holders of certificates of beneficial interest) pursued that remedy over a period of almost six years until the suit was terminated by a final judgment. They were successful in procuring a judgment in their favor for a substantial sum which was paid by Trust Company and distributed among them .in accordance with their interests. The remedy sought and obtained in that action was certainly inconsistent with the remedy asserted in the present case. In the first .case they were seeking to recover an additional sum under the terms of the option by asserting a more favorable construction of the term “book value” than had been agreed upon by the trustees and Trust Company. That action necessarily presupposed the validity of the option, and, when pursued to final judgment, irrevocably bound plaintiffs to the position that the trust agreement contained a valid option.

In the following cases the defense of election of remedies has been held applicable in factual situations which are somewhat comparable to the one before us. King v. Guy, supra; Tooker v. Missouri Power & Light Co., 336 Mo. 592, 80 S.W.2d 691, 101 A.L.R. 365; United States Fidelity & Guar. Co. v. Fidelity Nat. Bank & T. Co., 232 Mo.App. 412, 109 S.W.2d 47; and Bell v. Butte Inv. Co., Mo.Sup., 250 S.W. 381.

Plaintiffs contend that it was not shown that they had sufficient prior knowledge of the existence of the remedy asserted in the present case to warrant application of the defense of election of remedies. In that connection it should be noted that it need not be shown that they had that knowledge at the time the first suit was filed. It .is usually considered sufficient if it is shown that plaintiffs had that knowledge at any time before final submission of the cause. This for the reason that upon discovery of facts indicating a second inconsistent remedy plaintiffs (prior to final submission) could have dismissed the first case, without prejudice, and could then have filed a suit seeking to enforce the newly discovered remedy. Upon the issue of knowledge the trial court found that “Plaintiffs herein, as individuals and as representatives of a class consisting of all the holders of certificates of beneficial interest under the trust agreement of June 11, 1934, had full knowledge of all facts upon which this action is based prior to submitting cause No. 49,010-D [the first case] to this court for decision.” We will not detail the evidence supporting that finding. We consider it sufficient to say that there was ample evidence to support it and we adopt that finding for the purposes of this opinion.

Also, it should be observed that in several instances in the first trial plaintiffs offered evidence tending to indicate that the option might be illegal and the trial court, on three occasions, called their attention to the fact that they had elected to stand on the validity of the option. Note the following statements by the court and plaintiffs’ counsel: “(1) The Court: It appears to me, counselor, that your theory of recovery is not on the proposition that the trust agreement is illegal or void, but you asked the court to declare the true meaning of book value as used in the trust agreement. Mr. Rimmel: That is true, your honor. * * * (2) The Court: I might state at this time that I am inclined to believe it is inadmissible, for the reason that your whole theory of recovery is under the trust agreement and the option, and you have been stressing the option, and particularly that part of the option which sets out how the price of the certificates of beneficial interest shall be determined; and I thought that your whole case was based primarily on the proposition that * * * the trustees did not obtain a sufficient amount or sufficient consideration for the stock, and it seems to me if the transaction was legal but not carried out, that is your position, or else if the whole thing is illegal, why, don’t you have to take a stand one way or another ? * * * (3)The Court: It doesn’t appear to me you can have your cake and eat it, too. You can’t have the contract and recover on the contract, and then declare it is illegal. Mr. Wilier: We are not attempting to declare that in this particular matter by this letter. The Court: Are you contending that the trustees should have looked into the illegality and determined it if it was illegal? Mr. Rimmel: No, we are contending the trustees should have looked into the matter, period. The Court: For what purpose? Mr. Rimmel: To see whether or not they were getting the correct price.”

But plaintiffs say that the “proof only went to what Moser and possibly Berger and his mother knew when the prior action was commenced. They offered no evidence to show that any other members of the class of persons they now seek to bar from recovery knew anything about the validity of the option, and we have found no authority holding that the personal knowledge of persons who bring a class action is imputable to the other members of the class.” We think there is no merit .in the suggestion that the members of the class are not bound by the knowledge of the individual plaintiffs in the two actions. In the first case we held that the action was properly a class action and that the plaintiffs therein could properly bring a class action on behalf of all of the owners of certificates of beneficial interest. Upon the authority of the first case, and upon consideration of the evidence before us, we hold that the present suit is a proper class action and that plaintiffs fairly and adequately represent all members of the class here involved. In that situation it is virtually elementary that “a judgment in favor of the parties representing the general class is operative under the doctrine of res judicata in favor of all who are thus represented, and a judgment against those parties is operative also against those represented * * 39 Am.Jur., Parties, § 44, p. 919. If plaintiffs are the representatives of all members of the class in conducting the proceedings, and if all such members are to be bound by the judgment, we think it follows that the knowledge which the individual plaintiffs had, at the time they made an election as to the remedy they would pursue, is imputed to the other members of the class. Any other conclusion would be illogical, unsound, and would, as a practical matter, result in the emasculation of the doctrine of class representation in cases of this nature.

Plaintiffs also contend that the defense of election of remedies is not applicable to this case, because, in cases involving a breach of trust, they say the beneficiary may pursue as many remedies as may be required in order for him to be “made whole” or “obtain entire relief.” The difficulty with that contention is that, in a legal sense, plaintiffs obtained entire relief in the first case. In that suit they sought to recover the “book value” of the stock according to their theory of the meaning of that term. The final judgment adjudicated the amount of the “book value” and that amount was paid and has been received by plaintiffs. Just because plaintiffs may have been disappointed in the amount of their judgment in that case does not give them the right to now pursue another inconsistent remedy under the guise that they have not been afforded full relief. In support of the instant contention plaintiffs have cited Mann v. Bank of Greenfield, 323 Mo. 1000, 20 S.W.2d 502. That case is clearly distinguishable from the case at bar. Therein, the trustee had misappropriated assets of the trust and upon final' settlement the substitute trustee filed exceptions and obtained a judgment against the original trustee in the sum of $23,000. He then filed an action seeking to collect the judgment from the trustee’s bondsmen but apparently was unable to do so. The suit in the reported case was thereafter instituted in an effort to recover from the defendant bank on the theory that the actual trust assets had come into its possession. We held that the suit against the bondsmen was not an election which \vould bar the maintenance of the subsequent suit because the remedies were not inconsistent. Each of the suits constituted an effort to collect the original judgment and while the plaintiff was entitled to only one satisfaction he could use more than one remedy 'in seeking to obtain it. In the instant casé the plaintiffs had collected the full amount of their judgment.

It is the further contention of plaintiffs that the defense of election of remedies is not applicable because the option provision was void and hence could not be ratified. They cite 17 C.J.S. Contracts § 279(a),(c), pp. 668, 669, which states that “A contract malum in se or against public policy cannot be made valid by ratification.” And that “an agreement void as against public policy or because prohibited by law cannot be rendered valid by invoking the doctrine of estoppel.” Somewhat similar principles are stated in the cited'case of Parke, Davis & Co. v. Mullet, 245 Mo. 168, 149 S.W. 461. We do not think those principles are applicable to the case before ' us which, of course, does not directly involve ratification or estoppel but deals with the principles of election of remedies. For a discussion of the distinctions between the doctrines of ratification and estoppel as compared with election of remedies, see 28 C.J.S. Election of Remedies § 1(b), pp. 1059, 1060, and 18 Atn.Jur., Election of Remedies, § 5, p. 131.

We approve the rulings in the following cases decided by the courts of New York and New Jersey where the defense of election of remedies was held to be decisive even though the contract involved was alleged to be void. In Brown v. Manufacturers Trust Co., 278 N.Y. 317, 16 N.E.2d 350, 352, the factual situation required a consideration of principles similar to those here involved. After deciding the issues adversely to plaintiff the court stated: “We do not reach the question of the ultra vires-character of the contract (12 U.S.C.A., § 83, R.S. § 5201; 12 U.S.C.A. § 24, R.S. § 5136; Awotin v. Atlas Exchange Nat. Bank of Chicago, 295 U.S. 209, 55 S.Ct. 674, 79 L.Ed. 1393), as plaintiff both in the complaint and at the trial relied on the validity of the contract. He cannot now argue its invalidity. One cannot rely on a contract as valid and seek to recover because of its breach, which constitutes an affirmance of the contract, and then have a recovery on the ground that the contract is void, which constitutes a disaffirmance of the same contract. That is what the plaintiff is attempt ing to do here. Merry Realty Co. v. Shamokin & Hollis Real Estate Co., 230 N.Y. 316, 130 N.E. 306.” In a similar ruling the New Jersey court stated: “Here he asserts it is invalid and contrary to public policy. There he declared his readiness to perform and based his grievance upon the breach of the contract by the defendants. Here he acknowledges that it was he who declined to perform the contract. At law, he sought compensatory damages. Here he requests á rescission of the contract and the recovery of his initial monetary deposit. The distinction between those contentions would seem to be one of a contradictory and incongruous difference. Courts are not halls in which litigants in seeking redress in the same controversy can approbate in one forum and reprobate in another. To prevent such contortions the doctrine' of election of remedies evolved.” Lizak v. Rottenbucher, 140 N.J.Eq. 76, 53 A.2d 362, 366. We rule this contention adversely to plaintiffs.

In connection with our consideration of Count I we should perhaps state that plaintiffs do not contend that they are entitled to retain the amount they have received as the book value of the stock and also recover the stock as sought in this action. While they do not make a tender in the petition, they pray that the court order all beneficiaries to tender the amount heretofore received to Trust Company before the distribution of the stock is made.

For the reasons heretofore discussed we rule that plaintiffs are not entitled to recover on Count I of their petition.

Plaintiffs in Count II sought a judgment for damages against the surviving trustees of the 1934 trust for breach of their duties under said trust. Their main contentions in that regard are based upon the alleged invalidity of the option. They say the trustees should have asserted the invalidity of the option. It is suggested that the trustees should have either (1) refused to sell under the option and thus have required Trust Company to have filed a suit to enforce it, or (2) filed a suit alleging the invalidity of the option and seeking directions concerning a sale under its terms. Other complaints are made concerning the manner in which the trustees performed their duties but these need not be separately considered as the resulting damage is said to be the same as the other matters complained of, i. e., loss of the National Bank stock by sale under the option.

We are of the opinion that the defense of election of remedies also precludes a recovery upon the second count of the petition. This because plaintiffs, with knowledge of the facts, having sued and recovered in an action based upon the validity of the option, cannot maintain this action against the trustees upon theories which presuppose that the option was invalid and that the trustees should have asserted such invalidity. The principles we have discussed in our disposition of the first count are equally applicable to the questions presented in regard to Count IL In addition to the authorities heretofore discussed, we think the following comment in Restatement, Second, Trusts, § 21S, p. 510, is applicable: “The rule stated in this section is applicable where the trustee has sold trust property which it was his duty to retain. See § 208. In that situation the beneficiary can at his election charge the trustee with the value of the property at the time of the sale or at the time of the decree or require him to account for the proceeds of the sale. If the beneficiary affirms the sale and elects to require the trustee to account for the proceeds of the sale, he cannot thereafter set aside the sale and hold the trustee liable for breach of trust in making the sale.” We accordingly rule that the trial court properly entered judgment on Count II for the defendant trustees of the 1934 trust.

As previously indicated, our ruling cm the first count disposes of all contentions in regard to the third count.

The conclusion we have reached makes it unnecessary for us to consider other points briefed by the parties.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: COIL, Commissioner.

text:
    Adolph A. WINSCHEL and Esther R. Winschel, his wife, and Arthur E. Dame and Hazel E. Dame, his wife, and Wilbur G. Thompson and Wilma D. Thompson, his wife, and Louis F. Miller and Mabel Miller, his wife, Respondents, v. COUNTY OF ST. LOUIS, a Political Subdivision of the State of Missouri, Appellant.
    No. 48540.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1961.
    Motion for Rehearing or to Transfer to Court en Banc Denied and Opinion Modified on Court's Own Motion Jan. 8, 1962.
    William E. Gallagher, County Counselor of St. Louis County, Clayton, Walter H. Smith, First Asst. County Counselor, Ball-win, for appellants.
    Anderson & Edwards, Clayton, for respondents.
   COIL, Commissioner.

Respondents (four husbands and their respective wives) owned four homes in St. Louis County, each of which abutted on a strip of land which in 1905 had been dedicated to St. Louis County as a public street but which respondents claimed had been abandoned by nonuser. They sought a judgment declaring that they were the owners respectively of designated portions of the allegedly abandoned street. The case was tried to the court who adjudged that respondents had respective fee simple estates and that St. Louis County had no title or interest in the land.

In the view we take, the dispositive facts are undisputed. The ground was dedicated to St. Louis County for the public use on October 9, 1905, as a portion of Third Avenue, a street in a platted subdivision, then and at trial time in an unincorporated area of St. Louis County. Third Avenue runs east and west. The area .in question is 60 feet wide and 270 feet long and is that part of Third which runs between north-south Fleta Street on the east and north-south Genesta on the west. Each owner claims title to a plot of ground 135 feet long and 30 feet wide. St. Louis County Rad never spent any money or labor for the construction of Third at the place in question.

The trial court’s findings of fact and conclusions of law indicate that its judgment was based upon the finding that Third Avenue had been abandoned by reason of nonuser by the public for at least five years continuously under the provisions of Section 228.190 RSMo 1959 and V.A.M.S. That section (228.190) is: “All roads in this state that have been established by any ■order of the county court, and have been used as public highways for a period of ten years or more, shall be deemed legally established public roads; and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; and nonuser by the public for five years continuously of any public road shall be deemed an abandonment and vacation of the same.”

Appellant contends the foregoing statute is not applicable to a street, the title to which had been dedicated in trust to the county for the public use as a street, and that vacation of Third Avenue could be validly accomplished only under the provisions of Section 71.270 RSMo 1959 and V.A.M.S., which provides specifically for the vacation of streets .in subdivisions outside the limits of incorporated towns through a procedure there outlined. Respondents contend that Section 228.190 applies to all public highways except city •streets.

For the reasons which will appear, we are of the opinion that Section 228.190, supra, is inapplicable and that Third Avenue could not be abandoned by nonuser.

The parties have furnished a certified copy of the plat filed in the office of the recorder of deeds in St. Louis County on October 9, 1905, which shows that the proprietors of described land platted a subdivision called Lakewood made up of land in McKenzie’s subdivision located in St. Louis County and lying outside the city limits of St. Louis. That plat showed that the boulevards, streets, and avenues, including “Third,” were dedicated to the public for its use as such, reserving to dedicator the right to construct, maintain, and operate streetcar and railway lines or to construct or lay gas and water mains. The parties have agreed that there was a valid dedication of Third Avenue on October 9, 1905, and it is apparent that such dedication was accomplished by the filing of the above-mentioned plat pursuant to the provisions of Chapter 142, Sections 8955-8964 RSMo 1899 (Sections 445.010-445.120 RSMo 1959, V.A.M.S.). Those sections provide, among other things, for the filing of a plat by a proprietor who lays out a city, town, or village, or an addition thereto. Section 8959 RSMo 1899 (Section 445.070 RSMo 1959, V.AM.S.) provides in part: “Such maps or plats of such cities, towns, villages and additions made, acknowledged, certified and recorded, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein named, described or intended for public uses in such city, town or village, when incorporated, in trust and for the uses therein named, expressed or intended, and for no other use or purpose. If such city, town or village shall not be incorporated, then the fee of such lands conveyed as aforesaid shall be vested in the proper county in like trust, and for the uses and purposes aforesaid, and none other.” (Our italics.)

In Duenke v. St. Louis County, 358 Mo. 91, 213 S.W.2d 492, 495 [1, 2], the court construed the last sentence quoted above. In the Duenke case, just as in the present case, roads had been marked on a recorded plat of a subdivision of a tract of land outside the limits of a town or city. The court there said that by virtue of the recorded plat the county acquired title to the land within the designated boundaries of the public road for use as such. And in the earlier case of Hayes v. Kansas City, 294 Mo. 655, 242 S.W. 411, the court, in discussing the meaning of the same statutory provision as above noted, there Section 6573 RSMo 1879, said at page 414 of 242 S.W.: “In other words, the statute cited undertook to vest title to the streets in the county when there was no municipal entity to accept.”

It is apparent, therefore, that by virtue of Section 8959 RSMo 1899 above noted, St. Louis County was vested with a title to the ground marked Third Avenue, in trust, to use as a public street.

In Johnson v. Rasmus, 237 Mo. 586, 141 S.W. 590, the court was construing the “nonuser” statute, for all present purposes the same as Section 228.190, supra (although the nonuser period was then fixed at ten years rather than at five years as at present), and, at 141 S.W. 591, said that the statute applied “to any highway or public road, however acquired” and that the statute was not limited in its application to roads acquired by the public in the particular ways mentioned in the preceding portions of that statute.

In the later case of Robinson v. Korns, 250 Mo. 663, 157 S.W. 790, this court was considering land which had been shown on a town plat as having been dedicated for streets. It was claimed that then Section 10,446 RSMo 1909 (present Section 228.-190) applied. The court held that the nonuser portion had no application and said, with reference to that statute and its application, “Making it as broad as we can by literal interpretation, aided by every possible presumption which may arise from necessity or expediency, it only applies to public roads existing or which have existed, and not to the title of lands voluntarily conveyed in trust to be used for the purpose of establishing streets thereon as they shall be needed. State v. Muir, 136 Mo.App. 118, 117 S.W. 620; State v. Busse, 153 Mo.App. 466, 134 S.W. 680. The statute creating this last class of titles covers the whole ground of their origin and extinguishment, by a symmetrical plan. If all platted streets in our cities, towns, and villages which have not yet been opened and improved, although more than ten years has elapsed since the filing of the plats dedicating them, should at once and automatically be extinguished, and the land surrendered to the owners of abutting lots, to be purchased or condemned and paid for before it could be used for the purpose to which it has already been dedicated, the result would be startling. Such an effect ought not to be attributed to the use of a word, perhaps broader than necessary, in connection with a matter entirely disconnected with the subject. Such a rule would impose upon the legislator the duty, in selecting words to express himself about the matter in hand, to ascertain whether there is not something else of which he has never dreamed, but still within the range of legis.lative power, to which they might also be applied. There is nothing in Johnson v. Rasmus, 237 Mo. 586, 141 S.W. 590, which tends to question our conclusion in this respect. That case was dealing with the very matter to which this statute was designed to apply.” 157 S.W. 793.

It is true that the streets involved in the-Robinson case were within corporate limits and it had been held, before and since the Robinson case, that the nonuser provision of Section 228.190, supra, does not apply to city streets. Laclede-Christy Clay Products Co. v. City of St. Louis, 246 Mo. 446, 151 S.W. 460, 464 [6]; Webb v. City of East Prairie, 359 Mo. 247, 221 S.W .2d 153, 154. The language of this court in the-Robinson case makes it clear, however, that the reason for the nonapplicability of present Section 228.190 was not the fact that the streets happened to be located within a city but because the title to the land had been “voluntarily conveyed in trust to be-used for the purpose of establishing streets thereon as they shall be needed.” The court was ruling with respect to a “class of titles” which came into existence by voluntary conveyances in trust, irrespective of whether the dedicated streets were or were-not within an incorporated city.

Thus in the later case of Bobb v. City of St. Louis, 276 Mo. 59, 205 S.W. 713, this court, in discussing the applicability of the nonuser limitation of Section 7847 RSMo 1839, now Section 228.190, said at page 715: “Having acquired the land in perpetual trust, it could only be abandoned by an act as deliberate as that by which it had been acquired. The act of 1887 (R.S.1889, § 7847) [present Section 228.190] was not intended to apply to such titles, and does not purport to apply.” (Bracketed insert ours.)

In Evans v. Andres, 226 Mo.App. 63, 42 S.W.2d 32, 35, the court held that section (228.190) did not apply to a city street whether or not within an incorporated town, and construed the language of the section (228.190) to apply only to roads established by an order of the county court or by user for ten years and upon which public money had been expended. The court in the Evans case said at 42 S.W.2d 35 [9]: “There can be no doubt the Legislature has provided laws for streets and alleys separate and distinct from the general road laws. For example, when legally established roads under the general law have once been established the statute provides a method under the general law for vacation of the same by court proceedings. Section 7836, Rev.St.Mo.1929. But an entirely different section of the law governs the vacation of streets in platted unincorporated towns. See section 7169 [present Section 71.270], supra. It thus seems clear a separate Code has been provided for the vacation of the two classes of highways and we perceive no sound reason for enlarging upon the provisions of section 7839, supra [present Section 228.190], so as to permit it to encompass streets and alleys in unincorporated cities. We therefore hold said ten-year statute has no application in this case, although certain broad language used in the case of Johnson v. Rasmus, 237 Mo. 587, 141 S.W. 590, relied on by defendant, might be so construed.” (Bracketed inserts ours.)

We are of the view that the construction given present Section 228.190 by the court of appeals in the Evans case, supra, was correct and followed the rule of the Korns case, supra, which had specifically limited the scope of the broad language used in Johnson v. Rasmus, supra.

It is true, as pointed out by the respondents, that a court of appeals in Odom v. Hook, Mo.App., 177 S.W.2d 165, 171, 172, held that the broad language of present Section 228.190 made it applicable to any public highway other than city streets, relying upon language contained in Johnson v. Rasmus, supra. The court of appeals did not mention in its opinion either the case of Robinson v. Korns, supra, which, as we have held, limited the effect of the language of the Johnson case or the case of Evans v. Andres, supra, which followed the principle stated in the Robinson case.

We are of the view that Odom v. Hook, supra, is in error and should no longer be followed in so far as it holds that the nonuser provision of Section 228.190, supra, is applicable to streets which have been dedicated in accordance with the provisions of a statute and have been specified on a recorded plat of a tract of land located outside the limits of a town or city whereby title to said streets in trust has been vested in the county of the land’s location.

It is our opinion that Third Avenue may be vacated only in accordance with the provisions of Section 71.270, supra, and it follows that the judgment is reversed and the case remanded with directions to enter a judgment in accordance with the views herein expressed.

HOLMAN and HOUSER, CG, concur.

PER CURIAM.

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

All concur.