author: WOODSON, J.

text:
    MAMIE F. ROURKE et al., Appellants, v. HOLMES STREET RAILWAY COMPANY et al.
    Division One,
    May 31, 1909.
    1. ELEVATED RAILWAY: Obstruction to Light, Air and Access: Damages. The owner of real property abutting on a public street has an easement therein of light, air and access by means of said street; and that easement is property of which he cannot be deprived without just compensation. And the owner is entitled to recover all damages done to his abutting property by the interference with those easements by the construction of an elevated railway in the street and the operation of cars thereon.

      2. -: -: Prima-Facie Case for Plaintiff. Evidence that plantiffs are the owners of the property described in the petition; that it abuts on the street in which defendants had constructed and are operating an elevated street railway; that such construction and operation materially deprived the abutting property of light, air and access thereto, to their great damage, makes out a clear case for plaintiffs and the court should submit the issues to the jury.
    3. -: -: Measure of Damages: Contradictory Instructions: Construction: Maintenance and Operation. Plaintiffs’ instructions told the jury that the measure of damages resulting from the construction and operation of an elevated railway in the public street in front of their property, was the difference in the market value of the property “immediately before the construction, maintenance and operation” of the elevated railway “and immediately after the same was constructed and used for street railway purposes”; and defendant’s instruction told them that “if the market value of the property immediately after the building and operation of the street railway was equal to or greater than it was immediately before said railway was built, then plaintiff cannot recover in this suit.” Held, that the meaning of the two instructions is substantially the same and they are not in conflict. While plaintiffs’ instruction uses the word “maintenance,” and defendant’s does not, it must be held that the jury understood from both that they were to take into consideration the damage resulting not only from the construction of the elevated structure, but also the damage resulting from the continued operation of cars thereon. If either instruction properly declared the law, both did. But if both were erroneous, plaintiff, having invited the error, cannot complain.
    4'. -: -: -: Evidence: Rental Value of Other Property. It was error to permit a witness in direct examination to testify for defendant that the rental value of certain pieces of his property in the vicinity had increased since the construction and operation of the elevated street railway. Such testimony injects into the case a collateral and immaterial issue, can throw no light on the question of the abutting property-owner’s peculiar damages, and is calculated to confuse and mislead the jury.
    5. -: -: -: -: -: Waiver: Cross-Examination. Nor did plaintiff waive the court’s error in admitting that testimony by cross-examining the witness about the increase of his rents on his own property; nor can the court’s action in admitting it be justified by the fact that previously, when defendant on cross-examination of a witness for plaintiffs brought out that character of evidence, plaintiff on redirect examination briefly questioned the witness regarding the matter.
    6. -:■ --: -: Enhanced Value on Other Streets: General Benefits. It was error to admit testimony showing that the construction and operation of the elevated street railway enhanced the value of properties abutting on other streets of the city. The inquiry should be limited to the specific damages and benefits which resulted to the property alleged by the petition to have been damaged; and the general benefits it received in common with other property in the vicinity should not be gone into.
    7. -: -: -: -: Opinion That Property Was Damaged. An expert on real estate values was asked by plaintiff: “In your judgment, did the elevated street railway benefit or damage plaintiff’s property” abutting on the street? Answering, he stated that in his judgment it damaged it from $15,000 to $20,000. At the request of defendant the court struck out the answer. Held, error. The testimony was competent, material and relevant.
    Appeal from Jackson Circuit Court. — Hon. Jas. H. Slover, Judge.
    Reversed and remanded.

      Reed, Yates, Mastin & Harvey for appellants; Perry S. Rader of counsel.
    (1) Tlie destruction of or interference with, the incorporeal hereditaments of light, air and access pertaining to property, by the construction of an elevated railway in a street upon which the property abuts, is the same as damaging the property itself, and under the Constitution the owner is entitled to recover for whatever peculiar damage results to it. Glaus & Sons Mfg. Co. v. Railroad, 113 Mo. 315; DeGoefroy v. Merchants Bridge Terminal Ry. Co., 179 Mo. 698; Story v. Railroad, 90 N. T. 122; Doane v. Railroad, 165 111. 510; Lahr v. Railroad, 104 N. T. 291. The appropriation of those easements is” pro tanto an appropriation of the lot itself. Bohm v. Railroad, 129 N. T. 576. (2) Defendants’ instruction 1 is inconsistent with and contradictory of plaintiffs’ instructions 1 and 2. Plaintiffs’ said instructions cover the whole case, and are a correct statement of the law. Defendants’ instruction is incorrect and is not the law. The instructions for both sides directed that the damages, whatever they were, should be estimated as of the date the elevated railway was constructed. In that respect they agree. But they do not agree as to the elements of damages. Plaintiffs’ instructions ask for damages caused by the construction and maintenance of the elevated structure, and the operation of cars thereon. Defendants’ instruction limits the damage to the erection of the structure. It eliminated the question of maintenance and continued use and future operation of the cars. The evidence shows that the damage is continuous and will be perpetual so long as the cars are run upon the track. Plaintiffs’ instruction asked for damages for the continued maintenance of the structure, the operation of cars thereon, and the use of the structure as a street railway; defendants ’ limited the damages to the erection or construction of the viaduct. The jury could readily have concluded that what the longer verbiage of plaintiffs’ instructions meant was the skeleton damages allowed by defendants. The instructions are conflicting, and the giving of defendants ’ was error. The instructions are conflicting in another respect. Plaintiffs ’ instructions confined the attention of the jury to peculiar and unusual damages and to peculiar benefits. Defendants’ instruction made no distinction between peculiar and general damages, between usual and unusual noises and obstructions, between the damages and benefits that were special to plaintiffs’ property and the benefits to all property in the vicinity resulting from the presence of the road in Eighth street, (a) The damages must be estimated as of the date of the taking or appropriation. Railroad v. Knapp-Stout & Co., 160 Mo. 409; Mills on Eminent Domain, sec. 174; Pierce on Railroads, p. 209. (b) The abutting owners on the street have an interest in the nature of property for all time in the streets above their surface and in having them kept open and unobstructed, forever, of which they cannot be deprived without just compensation. Haywood v. Mayor, Etc., 3 Seld. (7 N. Y.) 325; Livingston v. Mayor, Etc., 8 Wend. 99; Doyle v. Railroad, 113 Mo. 286; Van Hoozier v. Railroad, 70 Mo. 148; Powers v. Railroad, 157 N. Y. 108. (c) “The injury” resulting to an abutting property-owner from the construction of an elevated railway in front of his property is “a continuing and permanent one, and therefore a single recovery can be had for the whole damages, present and future.” Doane v. Railroad, 165 111. 524; Railroad v. Loeb, 118 111. 203; Railroad v. Knapp-Stout Co., 160 Mo. 4101; Railroad v. Shoemaker, 160 Mo. 428. In Jamieson v. Railroad, 147 •N. Y. 325, it is said that “the wrong done is in the nature of a continuing trespass.” (d) Operation and use: Sperb v. Railroad, 137 N. Y. 159; Hynes v. Railroad, 66 N..Y. Supp. 511; Railroad v. Springer, 171111.179. (e) Maintenance: Emigrant Miss. Com. v. Railroad, 165 N. Y. 604, 20 App. Div. N. Y. 596. (f) Noise: Kane v. Railroad, 125 N. Y. 186; Sperb v. Railroad, 137 N. Y. 161; Retor, Etc., v. Railroad, 47 N. Y. Supp. 419. (3) The testimony of W. C. Scarritt was incompetent and should have been excluded on plaintiffs’ objection. No witness is competent to testify in direct examination as to specific increases of rents on his own property or any other property in the vicinity. Jamieson v. Railroad, 147 N. Y. 325; Douglas v. Railroad, 43 N. Y. Supp. 847; Robinson v. Railroad, 175 N. Y. 222; Railroad v. White, 166 111. 375. In Railroad v. Union Stock Yards, 120' Mo. 551, that being a condemnation case, it is said that witnesses, “qualified from experience, should not have been permitted to state facts connected with their own business.” Nor did plaintiffs waive the error of the admission of this evidence by cross-examining the witness on the same subject. Douglas v. Railroad, 43 N. Y. Sup'p. 848; Railroad v. Walsh, 197 Mo. 412. (4) The court erred in permitting defendants to inquire as to the enhancement of property along other streets from the construction of surface railways therein. The inquiry should have been confined, by way of comparison, to changes in values resulting from the construction and operation of elevated railways. Pries v. Railroad, 169 N. Y. 281; Railroad v. Walsh, 197 Mo. 401. (5) The court erred in striking out the testimony of Guignon to the effect that the viaduct helped the property in general in the neighborhood, but damaged the particular property in suit. That was a perfectly competent reply to the question, “In your judgment did the viaduct benefit or damage that property?” and there was no objection to the question. By striking it out the court indicated to the jury that, they were not to consider any damage to the particular property. (6) In any event, plaintiffs were entitled to nominal damages for the appropriation of his easements. Bohm v. Railroad, 129 N. Y. 576; Lambert v. Drug Co., 119 Mo. App. 693. There was an actual appropriation by defendants of plaintiffs’ easements of air, light and access. It has universally been held in this state that where private property is actually appropriated the owner is entitled to recover for the value of the property taken. Railroad v. George, 145 Mo. 47.

      John H. Lucas and Ben T. Hardin for respondents.
    (1) The construction of a street railway under the authority given by the municipality in whose’ streets such railway is constructed, is not a use of the street for which the owner of the abutting property may recover damages; and even the interference with the easements of light, air, ingress and egress, will not permit the owner to recover damages therefor, unless the property is thereby depreciated in value. This viaduct was constructed, and the street car line there-over maintained and operated under and by virtue of the ordinances of Kansas City, read in evidence by appellants, duly authorizing such construction and operation; such ordinances were duly enacted by the law-making power of the city, having full power and authority so to do, under its charter, a public law of this State; and all elements of fancied damages which necessarily flow from the careful operation of the street railroad in conformity to the powers so given, are not damages within the meaning of See. 21, Art. 2, of the Constitution. Siebert v. Railroad, 188 Mo. 657; Placke v. Railroad, 140' Mo. 634; Brown v. Railroad, 137 Mo. 529; Gaus Mfg. Co. v. Railroad, 113 Mo. 308; Vandevere v. Kansas City, 107 Mo. 83; Ransom v. Railroad, 10'4 Mo. 375; Smith v. Railroad, 98 Mo. 28; Railroad v. Railroad, 97 Mo. 469; Julia Building Assñ. v. Bell Tel. Co., 88 Mo. 273; Cross v. Railroad, 77 Mo. 318; Randall v. Railroad, 65 Mo. 325; Porter v. Railroad, 33 Mo. 128; Lackland v. Railroad, 31 Mo. 180; Morie v. Railroad, 116 Mo. App. 12. (2) Appellants are in error in their contention that the instructions given for the respective parties are in conflict. Appellants’ instruction tells the jury, if they find for plaintiffs, that the measure of damages is “the difference between the market value of the property immediately before the construction, maintenance and operation of the viaduct in question and immediately after the same was constructed and used for street railway purposes.” Respondents’ instruction tells the jury that “if the market value of the property in controversy immediately after the building and operation of the street railway and viaduct was equal to or greater than it was immediately before said railway and viaduct was built,” then plaintiffs cannot recover. Appellants claim that the instructions are in conflict, in that plaintiffs’ instructions ask for damages- caused by “the construction and maintenance of the structure and operation of cars thereon, ’ ’ while defendants ’ instruction “limits the damage to the erection of the structure.” There can be no such construction put' upon defendants’ instruction. It expressly tells the-jury that the valuation is to be placed upon the property “immediately after the building and operation) of the street railway and viaduct.” True, it does; not say “the operation of cars thereon;” but how could the street railway be operated without “cars thereon?” A juror is supposed to know that; and it will require the doing of great violence to language, amounting to torture, to construe the two instructions together and draw any conclusion other than that they mean one and the same thing, and are based upon the theory which appellants adopted in the beginning of the trial, and upon which the cause proceeded throughout the entire trial. Upon the theory thus adopted and proceeded with, the appellants must stand in this court. Kilpatrick v. Wiley, 197 Mo. 171; Chinn v. Naylor, 182 Mo. 583; Hall v. Goodnight, 138 Mo. 589; Walker v. Owen, 79 Mo. 583. And if respondents’ instruction is not the law, the appellants are not in shape to complain here, because their instruction was of the same kind. Smart v. Kansas City, 208 Mo. 204; Christian v. Ins. Co., 143 Mo. 460; Reilly v. Railroad, 94 Mo. 600; Thorp v. Railroad, 89 Mo. 650; 'Holmes v. Braidwood, 82 Mo. 610; Smith v. Culligan, 74 Mo. 388; McGonigle v. Dougherty, 71 Mo. 259. (3) There was no error in allowing the testimony of W. C. Scarritt, and other testimony of like import, on behalf of respondents, as to the value of property other than appellants’, in the immediate vicinity thereof, in view of the fact that appellants opened np that question in making their case, and inquired as to the sale of property there and as far away therefrom as two blocks. (4) There was no error in striking out the testimony of witness Guignon.
   WOODSON, J.

The plaintiffs instituted this suit in the circuit court of Jackson county to recover damages, alleged to have been done to their property, located in Kansas' City, caused by the construction and operation of an elevated street railway in front thereof by defendants, and thereby obstructing the light and air, and the ingress and egress to and from said property. The amount of damages claimed was $35,000. The answers were general denials.

A trial was had before the court and a jury, which resulted in a verdict and judgment for defendants; and in due time and in proper manner plaintiffs appealed the case to this court.

As the sufficiency of the pleadings are not challenged, it will be useless to incumber this statement by giving them space herein.

The facts of the case are practically undisputed, except as regards the question of damages, and they are stated substantially, in brief of counsel for appellant, as follows:

Plaintiffs were husband and ‘wife, and she is the owner of Lot 40 in Ross & Scarritt’s Addition to Kansas City, Missouri, which is situated at the northeast corner of Main and East Eighth streets. The lot is known by its street number as No. 727 Main street, and fronts twenty-four feet on that street, and runs back on East Eighth to the. alley between Main and Walnut streets. On the west end of the lot is a substantial three-story and basement brick building which runs back east on Eighth street 72% feet. East of this building is a two-story brick building fronting on Eighth street, forty-two feet wide and twenty-four feet deep, and east of that a one-story brick building, also fronting on Eighth street. Running along south of all these buildings, on the north side of Eighth street, there was a sidewalk 10% feet 'wide prior to the construction of the viaduct or elevated railway in 1899. The first floor of the three-story brick building in front is on a level with Main street, and on the south are three windows to give light to the first-floor room, and six windows to give light to the second-floor room. There is a door or entrance way just at the corner of Main and Eighth, and there is also a door further east on Eighth street to the first-floor room.

Eighth street is sixty feet wide from building line to building line. By an ordinance approved March 4, 1899, and accepted March 8, 1899', Kansas City authorized the Holmes Street Railway Company, its successors and assigns, to construct, maintain and operate, for a period of twenty-five years, in said Eighth street, a double-track elevated railway, whose motive power was to be “an endless cable or electricity or either of said motive powers.” By section 13 the railway in the vicinity of plaintiff’s property was to be “constructed upon a substantial and safe steel viaduct,” elevated above the surface of the street, and was not to “exceed a width of eighteen feet-in extreme dimensions, except where stairways and stations are maintained. One stairway at each of the four corners shall be erected and maintained at Eighth and Main streets so as to afford at said place convenient passage between the cars used on said viaduct and the streets below.” The stock of the Holmes Street Railway Company was owned by the Metropolitan Street Railway Company, and the latter company operated the railway.

In this Eighth street the defendants, between March 8, 1899, and July, 1900, constructed an elevated, railroad. There is a steep up-grade between Walnut street and Main street, Walnut being the next parallel street east of Main. The viaduct begins at the surface on the west line of "Walnut street, and its elevation increases as it approaches plaintiff’s property. Opposite plaintiffs’ property, at the alley, the under-side of the structure is 6% feet above the surface of Eighth street. Opposite the northeast corner of Main and Eighth streets, the under-side of the structure is 13.3 feet above the level of Eighth street. Prom the underside or bottom of the structure to- “the landing” or level above, is four feet, so that “the landing” opposite the northeast corner is 17.3 feet above the level of "the street. Above the landing there is a steel guard and “a shelter” with a cover over its top-, “a shelter on the station.”1

The viaduct is eighteen feet wide in its usual construction. On its north side opposite plaintiffs’ property there is a stairway, which extends out north, that widens the whole structure for a length of 29.2 feet east from Main street. This stairway takes up 5% feet of the sidewalk, so that it comes up within five feet of the building, leaving a passageway only five feet wide from the southwest corner of the building along Eighth street for a distance of 29.2 feet. This stairway is the same width above and below, so that its landing above comes within five feet of the building. The viaduct covers the first-story windows, or is higher than they are, and the top or shelter of the-stairway extends as high up as the windows of the third story. The stairway takes up half the sidewalk between the building and the curb. The viaduct shuts off the view of the building from the south, so that when approached from the south it can scarcely be seen, and that fact renders it unfit for display or advertising of any kind.

On this elevated structure defendants run seventy-one cars per hour during the day time, and average-fifty-three per hour for the whole twenty-four hours, and sometimes there are even more than seventy-one per hour. The cars come within twelve feet of the building. The windows of the second story are on a level with persons in the cars, and the blinds or shades of those windows must be kept constantly drawn to prevent passengers on the cars and on the stairway from looking into the rooms, which are living rooms.

Prior to the construction of the elevated railway, it was not necessary to use artificial light to give sufficient light to the room on the first floor of the building that comes up to Main street. It was then “a very bright room.” Since then it has been necessary to keep an arc electric light going in the room day and night at all seasons of the year. The passing of the cars blinds those within the room; when a ear passes, “it gets dark for a second, and when it passes and the sunshine comes out again it is like coming from the dark into the light.”

The viaduct where it crosses Main street has plates of steel or .sheet, iron on the under-side, which makes it a kind of sounding board as cars pass. All the witnesses testified that the cars make a great and unusual noise — far more than ordinary surface cars.

“It is one continual rumble — that is all there is to it — you can hardly understand each other sometimes.” “Standing in the lobby of the restaurant or saloon you can hardly hear a person talk.” The ground floor of the building at the corner of Main and Eighth streets is used for a saloon, and connected with it in the building immediately-north is a restaurant.

Prior to the construction of the viaduct there w;as and is no!w a single-track surface railway in Main street, and more lines pass over that line than did formerly. Since the elevated railway was constructed there has been a settling in the west building. The walk from the curb to the building has settled down at least an inch, and the doors are settling down at the bottom and have to be trimmed off at the bottom about • once a year. The- movement of the cars can be felt in any part of tbe building. Whether one is in the basement or on the first floor he “can feel the car going by without taking into consideration hearing them. ’ ’

Plaintiffs’ evidence tended to prove that the special and peculiar damages done and would be done to this property by the erection, maintenance and operation of this elevated road from the time it was constructed, less whatever peculiar benefits it had received in consequence thereof, was from $15,000 to $20,000, while that of defendants tended to show said property was not only not damaged but that it was in fact benefited from $10,000 to $20,000 thereby.

Plaintiffs objected to the rulings of the court regarding the admission and striking out of certain testimony, which will receive special attention in the course of the opinion.

At the request of plaintiffs the court gave the following instructions:

“1. The court instructs the jury that the plaintiffs as the owners of Lot forty (40) in Ross and Scarritt’s Addition to Kansas City, Missouri, known as No. 727 Main street, and Nos. 6, 8, 10, 12 and 12 1-2 East Eighth street in said city, were at the time of the construction of the viaduct in question along Eighth street and across Main street adjoining the said property, seized of an easement in such streets of air, light and access to and from said property by said streets, and were entitled to have the use of the same free from unusual noise, and that the plaintiffs cannot be deprived of such rights without just compensation.
“That the construction and maintenance on such streets of an elevated structure or viaduct and the use of the same for street railway purposes constitute a new and additional servitude on the land upon which the street is constructed, and that the city of Kansas City, Missouri, had no authority in law to grant the power to the defendants to so use said streets as to destroy or unreasonably interfere with the right of the plaintiffs to access to or egress from their said property, or to so deprive them of such easement of light and air from the said streets.
“If, therefore, the jury find and believe from the evidence that the construction, operation and maintenance of the said viaduct or elevated superstructure for street railway purposes by the defendants along and adjacent to the plaintiffs’ said property has impaired the use of said streets for the ordinary purposes of a public street or highway, and that unusual obstructions of light, air, access to and egress from the said premises of the plaintiffs and unusual noises from the operation of said street railway company have resulted therefrom, then the finding and verdict in this case must be for the plaintiffs.
“2. The court instructs the jury that if they find for the plaintiffs under the other instructions in this case, then the measure of plaintiffs ’ damages will be the difference between the market value of the plaintiffs’ property, known as No. 727 Market street, and Nos. 6, 8, 1.0, 12, and 12 1-2 East Eighth street, immediately before the construction, maintenance and operation of the viaduct in question and immediately after the same was constructed and used for street railway purposes, and in such event the jury should return a verdict in favor of plaintiffs for such sum as they may find and believe from all the evidence in the case will reasonably compensate the plaintiffs for such injury or injuries, if any, to the said property of the plaintiffs referred to in the other instructions in the case.”

The defendants asked and the court, over the objections of plaintiffs, gave to the jury the following instructions, to-wit;

“1. If you believe and find from tbe evidence in tbis case that the market value of the property in controversy immediately after the building and operation of tbe street railway and viaduct in Eighth street, was equal to or greater than it was immediately before said railway and viaduct was built, then the plaintiffs cannot recover in this suit, and your verdict must be for the defendants.
££2. The court instructs the jury that in this case the burden of proof rests upon the plaintiffs to prove to the satisfaction of the jury by a preponderance of the evidence in the case that they have been damaged by reason of the construction of the railway and viaduct in Eighth street, as claimed by them and alleged in their petition. And by £a preponderance of the evidence’ is meant the greater weight of all credible evidence in the case; if plaintiffs have not greater weight of the credible evidence with, them or if the evidence is evenly balanced as to the weight, then in neither of such events can plaintiffs recover in this case, and your verdict must be for defendants.”

I. It is no longer an open question in this State that the owner of real property abutting upon a public street in a town or city has an easement therein of light, air, and access to and from his property by means of said street; and that easement is property of which he cannot be deprived without just compensation.

And when an elevated street railway, constructed and operated by permission of such town or city on permanent structures along such public street, interferes with and deprives such owner of his easement of light, air and access to and from his lot and buildings, he is entitled to recover all damages done thereto in consequence of said construction and operation. [DeGeofroy v. Railroad, 179 Mo. 698; Gaus & Sons Mfg. Co. v. Railroad, 113 Mo. l. c. 315, and cases cited; Story v. Railroad, 90 N. Y. 122; Doane v. Railroad, 165 Ill. 510; Bohm v. Railroad, 129 N. Y. 576.]

The evidence sho'wed plaintiffs were the owners' of the property described in the petition; that it abutted on Eighth street, in Kansas City; that the defendants constructed and operated an elevated street railroad along said Eighth street in front of their property, which materially deprived them of light, air and access to and from their said property, to their great damage. That evidence made a clear ease for plaintiffs, and the court very properly submitted it to the jury.

II. Counsel for appellant complain of instructions numbered one and two given by the court for respondents, for the reason assigned — that they are inconsistent with and contradictory to plaintiffs’ instructions numbered one and two, also given by the court.

The particular difference between them, as pointed out, regards the elements of damages stated in each.

Appellants’ instructions in substance told the jury that the measure of their damages was the difference between the market value of the property immediately before the construction, maintenance ancl operation of the road and immediately after the same was constructed and used for the purposes mentioned. While respondents’ instruction, numbered one, substantially told the jury that if the market value of the property immediately after the building and operation of the road was equal to or greater than it was immediately before it was built, they could not recover; and instruction numbered two given for respondents told the jury that the burden rested upon appellants to prove they had been damaged by reason of the construction of the railroad, before they were entitled to a recovery.

The verbiage of the instructions given for appellants differs from that employed in those given for respondents, but the meanings are substantially the same. In our opinion those given for appellants, as well as those given for respondents, fixed the measure of damages at the difference, if any, between the market value of the property immediately before and immediately after the construction and operation of the road. While respondents’ instructions do not use the word “maintenance” as appellants’ do, yet that omission did not give them a different meaning from that expressed in appellants’; nor could the jury have been misled by that omission, as we must presume they were men of common sense and would know and understand such a road could not be constructed and operated without it was maintained.

We, therefore, hold that there was no conflict or inconsistency between the instructions given for appellants and those given for respondents. If the former properly declares the law, then the latter does also; but if the latter does not correctly state the law as applied to this ease, then neither does the former. But whether respondents’ instructions are correct or incorrect, appellants are in no position to complain, because their instructions fixed the same measure of damages as that fixed by the respondents ’. They having invited the error, if error it be, then they cannot complain. [Smart v. Kansas City, 208 Mo. l. c. 204; Christian v. Ins. Co., 143 Mo. 460.]

III. Counsel for appellants next complain of the action of the trial court in permitting Mr. W. C. Searritt to testify over their objection as to the increase of rentals of his properties, situate on Main street, in the same block as that of appellants, after the construction and operation of the road, for the purpose of tending to show the property in question has not been damaged by the construction and operation of the road.

That precise question came before the New York Court of Appeals in the case of Jamieson v. Railroad, 147 N. Y. l. c. 325, and Judge Finch, in speaking for the unanimous court, used this language: “But I think, also, that there was error in the admission of evidence which we cannot disregard. The plaintiff sought to prove the evil effect of the road in diminishing values by the process of calling the owners of property in the vicinity and proving, in each case, what the particular premises owned by the witnesses rented for before the road was built and what thereafter. There were objections and exceptions. Such a process is not permissible. Each piece of evidence, raised a collateral issue (Gouge v. Roberts, 53 N. Y. 619) and left the court to try a dozen issues over as many separate parcels of property. We have held such a mode of proof to be inadmissible. [Huntington v. Attrill, 118 N. Y. 365; In re Thompson, 127 N. Y. 463.] The elevated railroad cases in this court, to which the plaintiff refers us, give no warrant for such a mode of proof, but indicate that the general course and current of values must be shown by persons competent to speak, leaving to a cross-examination any inquiry 'into specific instance if such be deemed essential. Almost all the evidence of depreciation was of' the erroneous character, and we cannot say that it may not have worked harm to the defendant.” The same conclusions were reached in the case of Douglas v. Railroad, 43 N. Y. Sup. 847.

And in the case of Robinson v. Railroad, 175 N. Y. 221, the. same question was again presented to the New York Court of Appeals, and, after quoting with approval the language heretofore mentioned in the case of Jamieson v. Railroad, supra, it adhered to that ruling. The same principle was announced by the Supreme Court of Illinois in the case of Railroad v. White, 166 Ill. 375. [Railroad v. Union Stock Yards, 120 Mo. 551.]

In onr opinion the conclusions reached by those courts in those cases are correct upon both principle and authority; and this testimony should have been excluded, because it injected into the ease collateral and immaterial issues which could throw no light whatever upon the question of appellants’ damages, and was calculated to confuse and mislead the minds of the jury.

Counsel for respondents undertook to justify the court’s action in admitting that evidence by showing that appellants first introduced the same character of testimony in proving their case, and for that reason they should not now be heard to complain. After an inspection of the record, we are of the opinion that counsel for respondents are in error regarding that matter, for the record discloses that they, and not counsel for appellants, first brought out that character of evidence by cross-examination of plaintiffs’ witnesses. While it is true, counsel for appellants on redirect examination briefly questioned the same witness, Miller, regarding the matters testified to by him on cross-examination, yet that brief examination, in our judgment, should not have barred his right to object to the further introduction of that class of testimony, for the reason respondents’ case was not changed or injured in any manner whatever thereby. [Douglas v. Railroad, supra; Railroad v. Walsh, 197 Mo. 412.]

This question was presented in the case last cited, and the ruling therein was adverse to the contention of respondents.

We, therefore, hold that the court erred in the admission of that testimony.

IV. We are also of the opinion that the court committed reversible error in the admission of testimony showing that the construction and operation of the road enhanced the values of properties abutting upon other streets of the city. The inquiry should have been limited to the specific damages and benefits which resulted to this property in consequence of the construction and operation of this road; and the general benefits it received in common with other property in the vicinity should not have been gone into. It was misleading and confu'sing to the jury, who presumably took it into consideration in estimating the questions of damages and benfits, as submitted to them by the instructions.

V. The witness, G-uignon, an expert upon values of real estate in Kansas City, was asked by counsel for appellants the following question, among others, “In your judgment, did the viaduct benefit or damage that property?” In answer thereto he stated that in his judgment it damaged the property from $15,000 to $20,000. At the request of counsel for respondents the court struck out that and similar answers, to which appellents excepted, and assign that action of the court as error. Clearly, that testimony was competent, material and relevant to the issues on trial, and it should not have been stricken out. That character of testimony has been held admissible so often by this court that it would be a supererogation of labor to cite authorities in support thereof.

For errors before suggested, the judgment is reversed and the cause remanded for a new trial. All concur, except Valliant, J. absent.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    ADA BARHAM, Appellant, v. W. F. SHELTON, Jr.
    Division One,
    May 31, 1909.
    1. ABSTRACT AND BRIEF: Delay in Filing: Excuses. A motion to affirm the judgment for a two days’ delay in filing the abstract and brief will not be sustained where a sufficient showing is made that appellant’s counsel was sick and the printer was much crowded with work.
    2. AMENDED ABSTRACT: Untimely Filing. An amended abstract tendered on the day of hearing cannot be received or considered. If the original abstract was so faulty in stating material matters of record as to, authorize the sustaining of a motion to dismiss the appeal or writ of error, no leave should be granted to file an amended or supplementary abstract after the opposite party has served his brief calling attention to the defects.
    3. ABSTRACT: Insufficient. Where matters of record proper and matters of exception are so commingled in the pretended abstract that it cannot be determined whether they are the one or the other, no inquiry can be made into the merits of the case.
    4'. -: -: Motion for New Trial. The abstract contained this recital: “On May 25, 1906, to which same is continued, the court doth overrule said motion for a new trial, to which the appellant then and there excepted.” This is the only recital in the abstract referring to the motion for a new trial, except the one immediately preceding reciting that the motion was filed on December 14th, “as follows,” setting out the motion. Held, that, if the recital be, considered as part of the record proper, then there is no recital in a bill of exceptions showing that an exception was saved to the overruling of the motion; if it be considered as a part of a bill of exceptions, then the record proper does not show the filing of a motion for a new trial and the court's ruling thereon. A recital in the record proper that an exception was saved to the court’s action in overruling the motion for a new trial is the same as saving no exception at all; the place for such an exception, and for all other exceptions, is in the bill of exceptions. Therefore, there was such a commingling of matters of exception and of matters of record proper that nothing can be considered except the record proper.

      Appeal from Dunklin Circuit Court. — Hon. J. L. Fort, Judge.
    Abbbrmed.

      John W. Scobey for appellant.

      W. S. C. Walker for respondent.
    (1) The abstract of the record was not served by appellant within the time provided by law and the rules of this court. E. S. 1899, sec. 813; Eule 11. (2) The abstract filed by the appellant is not such as is contemplated and required by the statutes and the .rule of court referred to above. Hill v. Butler County, 195 Mo. 511; Yandeventer v. Gross, 190 Mo. 239; Everett v. Butler, 192 Mo. 564. (3) The abstract is fatally defective because it fails to show proper record entries of the filing of the motion for a new trial, granting of' leave to file bill of exceptions, and extension of time therefor, the filing of the bill, granting of the appeal and the judgment. Williams v. Harris, 110 Mo. App. 538; Cummings v. Eiler, 121 Mo. App. 576; Eeed v. Eailroad, 122 Mo. App. 93. (4) The abstract must show from the record proper that the motion for a new trial was filed and the bill of exceptions- must show that such motion was overruled and exceptions saved, otherwise there is no bill of exceptions' to review. Bradbury v. Kerns, 115 Mo. App. 99; Bailey v. McWilliams, 111 Mo. App. 35; Hesse v. Ins. Co., 115 Mo. App. 89. (5) The abstract must show not only that the bill of exceptions was approved and, signed by the trial judge; there must also be set out so much of the' record entry as shows when the bill was filed, whether in vacation or in term time, and whether or not within time properly allowed. Clay v. Union Wholesale Pub. Co., 200 Mo. 665; Everett v. Butler, 192 Mo. 569; Harris v. Wilson, 199 Mo. 412; St. Charles ex rel. v. Dee-mar, 174 Mo. 122; Eeno v. Fitzjarrell, 163 Mo. 122.
   GRAVES, J.

This cause was on our docket for hearing April 21st, but was not reached until April 23rd. March 31st, the respondent lodged in this court his motion to affirm the judgment for divers reasons therein assigned, as follows: (1) that the abstract of record and brief of appellant had, not been served and filed thirty days before the date set for hearing, and (2) that there are numerous failures to comply with the statute and our rules in the preparation of the abstract of record, which failures are pointed out in the motion. On April 23rd, the day of hearing, appellant tendered for filing an additional abstract of the record, but the same was not then permitted to be filed, the court concluding to take such tender and the-motion to affirm with the case, and they were so taken. Respondent objects to the tendered amended abstract of record, and insists on his motion to affirm, a copy of which motion to affirm, with brief thereon, together with notice of respondent’s intent to file the same, was served upon appellant’s counsel on March 29th, 1909. By affidavits, counsel for appellant seeks to excuse the delay of two days in serving and filing his abstract of record and brief. Such are the issues upon the motion to affirm and leave to file additional or amended abstract.

.1. The affidavits disclose that counsel for appellant had been unwell for some time prior to the preparation of the abstract and brief, and the printer was much crowded with work. The full details are unnecessary, suffice it to say that upon this point the showing is sufficient to excuse the two days delay, and this point in the motion to affirm is not well taken.

II. The amended abstract of record was not tendered until the day of hearing in this court. We had occasion to review the authorities in this State upon this question in the recent case of Harding v. Bedoll, 202 Mo. 625. After quoting from Everett v. Butler, 192 Mo. l. c. 569, we then said; ‘ ‘ The foregoing seems to he the rule as to supplementary abstracts of record. To say the least, they should not be filed without leave of court and if so filed will not be considered. We will add further that if for any reason the original is so faulty in stating material matters of record as to authorize the sustaining of suggestion to dismiss the appeal or writ of error, no leave should be granted after the opposite party has served his brief or other writing 'calling attention to the defects. To hold otherwise, would, as Judge Gantt practically says, place a premium upon negligence in the preparation of abstracts. ’ ’

This is a wholesome rule and should be adhered-to, for otherwise laxity in the preparation of abstracts of record would be encouraged. If counsel be permitted to amend abstracts of record at any and all times the rules of the court might as well be abolished, and with them the statute itself. The amendment in this case should not be permitted. [Harding v. Bedoll, supra; Everett v. Butler, 192 Mo. l. c. 569; Hoffman v. Loudon, 96 Mo. App. l. c. 188; Bank of Tipton v. Davidson, 40 Mo. App. l. c. 423.]

III. The abstract of record is wholly insufficient under our rules to permit an inquiry into the merits further than the record' proper. The document we have before us, on page 4, is headed “Abstract of Record.” Under this heading we have an abstract of petition, the answer in full, and the reply in -full, which takes all of pages 4, 5 and 6, and a part of page 7. On page 7 immediately following the reply we have this heading, “The following is an abstract of the evidence,” and following this heading on page 7 to top of page 19 follows the evidence and declarations of law. Following this on page 19 and 20 we have the judgment and after the judgment we find on page 20 this language, “On December 14, 1905-, the appellant filed motion for new trial, omitting caption, is as follows:” The motion for new trial is printed in full taking a part of pages 20 and 21. Then on page 21 we find the following:

“On May 25, 1906, to 'which same is- continued, the court doth overrule .said motion, to which the appellant then and there excepted.
“On May 21, 1906, the appellant filed application and affidavit for appeal which was duly granted to the Supreme Court of Missouri; and appellant is given until October 1, 1906, to file bill of exceptions.
“And by additional extensions by the court and by agreements in writing between attorneys of record for both parties, the time is extended continuously to February 1, 1908.
“And on January 27, 1908, the appellant presents her bill of exceptions in this cause to the trial judge who tried this cause, and same is duly signed and filed and made a part of the record.”

After this we have the assignment of errors, the brief, argument and index. We have accounted for every page of the document, save pages 1, 2 and 3, and to the end that all may be accounted for, we will add that these pages are taken up with counsel’s statement of his case to this court.

There is nothing in this pretended abstract to distinguish record proper from matters of exceptions which are preserved in bills of exceptions, and under our rulings this is fatal. [Stark v. Zehnder, 204 Mo. l. c. 449; Clay v. Union Wholesale Pub. Co., 200 Mo. l. c. 673; Harding v. Bedoll, 202 Mo. 625.]

The recital, “On May 25, 1906, to which same is continued, the court doth overrule said motion, to which the appellant then and there excepted,” referring to the motion for new trial, would indicate that the counsel were talking of a part of a bill of exceptions, but the record proper should not only show the filing of the motion, but likewise the ruling of the court thereon, and the abstract should show these things from the record proper, in addition to the exception saved to the action of the court, which exception can only appear in the bill of exceptions. [Pennowfsky v. Coerver, 205 Mo. l. c. 136, and cases cited.]

If the entry quoted above refers to the bill of exceptions, as we take it that it does, then there is nothing from the record proper showing the overruling of the motion, and on the other hand if it be called record proper, then there is nothing to show that the motion was even mentioned1 in the bill of exceptions, either of which is fatal.

We have a mass of testimony abstracted, but not a thing to show that it was preserved in a bill of exceptions. Other defects might be discussed, but these are sufficient. We can consider nothing but the record proper.

An examination of the pleadings and judgment shows that the judgment is one which could be entered upon the pleadings, and the same is therefore affirmed in accordance with the prayer of respondent’s motion.

All concur.


author: LAMM, P. J.

text:
    D. A. AVERY et al. v. CENTRAL BANK OF KANSAS CITY et al.; SALLIE M. THAYER, Administratrix of Estate of GEORGE E. THAYER, Appellant.
    Division One,
    May 31, 1909.
    1. BREADTH OF PLEADINGS: Theory at Trial. Where the pleadings at the trial were treated hy all parties as sufficient to formulate, and direct the court’s attention to, the real matter in controversy, they will he so treated on appeal, though they are not as specific as might he.

      2. BANK STOCK: Gift: Donee Charged With Donor’s Conversion, Bank stockholders who took stock by way of gift from their father when the bank was in distress, took it not as innocent purchasers, but subject to whatever right belongs to the estate of the cashier, who had been compelled to restore to the bank money wrongfully paid out to the father, to have the stock excluded from participation in the money so restored on final distribution among the stockholders of the bank’s assets.
    3. CORPORATION: Distribution of Assets: Disputes Between Stockholders. In winding up a 'corporation and making distribution among its stockholders of its net assets, the court should try a controversy between two of its stockholders relating to the amount each should have.
    4. -: -: -: Restoring to Tortfeasors Money Paid In. Where a non-resident stockholder of the bank was wrongfully paid $2,550 of the bank’s money for stock held by the bank as collateral security for another’s debt, and he and the cashier were joint tortfeasors in that wrongful payment, and the cashier was compelled by judgment to restore to the receiver of the bank the amount so converted, whereby the assets of the bank, whose creditors are satisfied, were increased, the court should not, on final distribution of the remaining corporate assets, tread back and settle alleged equities between the joint tortfeasors by returning to the cashier’s estate the other’s pro rata share of the money the cashier was compelled to restore to the bank on the other’s account.
    5. -: -; — : Pro Rata Distribution. On the dissolution of a bank, its debts being paid, each stockholder has a separate right to a distributive share pro rata „of the remaining assets.
    6. -: -: Contribution Between Joint Tortfeasors. There is no right of contribution between joint tortfeasors. So that if a non-resident and the cashier, both being stockholders, were joint tortfeasors in perverting the bank’s funds, or in converting them to the non-resident, and the cashier by suit was compelled to restore, he cannot, on a final distribution, ask to be reimbursed to the amount his restoration swelled the distributive share of the non-resident. The bank had a right to sue one or both, and to recover all from either, and if either made satisfaction the law leaves him in the pickle it finds him.
    7. -: -: -: Benefit of Other Joint Tortfeasors. The rule of no contribution from joint tortfeasors applies between members of a corporation who conspired to defraud it; and between such members, although the shares of one joint wrong- • doer may be benefited by an increment of gain from a judgment recovered in the name of the corporation against the other wrongdoer.

      8. -: -: -: To Recover From Bank. A suit by tbe cashier, to have, on final distribution of tbe bank’s assets, returned to him the pro rata share of another stockholder of the money he. as a joint tortfeasor, was compelled by judgment to restore to the bank, is an endeavor in a roundabout way to enforce contribution from another joint tortfeasor. The other stockholder is not seeking to recover from him, for the recovery by the bank is an accomplished fact, and when the bank recovered the money it went to its corporate chest and by operation of law inured to the benefit of all its stockholders pro rata.
    9. JUDGMENT: Joint Tortfeasors: Recovering Back. One joint tortfeasor cannot recover back his pro rata share of a judgment against him which he has paid, even if the other, who was not made a party, was equally guilty in the wrong.
    Appeal from Jackson Circuit Court. — Hon. W. B. Teasdale, Judge.
    Affirmed.

      Douglass & Watson for appellant.
    The relief that Sallie M. Thayer is asking for in her petition is that the court leave the Sponables in the position that J. W. Sponable placed them, that is, that as he colluded and agreed with Thayer that this money should be taken out of the bank and appropriated by them in the manner shown in evidence, his sons, Fred T. and Frank, should not be paid a second time for such wrongful appropriation. The intervening petition asks that the amount of funds in the hands of the receiver going to the Sponables as stockholders out of and on account of the $5,100 and interest thereon be withheld from the Sponables, and be turned back to the intervening petitioner. We are not asking the court for a judgment against a joint wrongdoer, as the trial court seemed to think when this case was heard. The Sponables have not yet received the proportion asked for of the $5,100 and interest thereon which was found to have been wrongfully taken from the treasury of the corporation by J. W. Sponable and1 Thayer. We are not asking the court to render a money judgment against the Sponables but we are asking the court to withhold from them any proportion of that fund which Thayer was adjudged to pay hack, because in equity and good conscience they are not entitled to any part of the same. They assented to the transaction; they received their share of the booty, and now we are asking the court to leave them just where they placed themselves; and not to again award them money which they already received and for which Thayer has had to respond. They have already, through' their father, received their one-half share of the $5,100 in January, 1890, and now as Thayer’s estate has been made to refund that amount, which included what J. W. Sponable received, his assignees are asking the court to give them nearly one-half of that amount, notwithstanding their father was guilty of the very acts which made Thayer responsible to the Central Bank. This bank is a defunct concern and has no creditors, and therefore the only parties interested are the stockholders. 2 Clark & Marshall, Corp., pp. 1700, 1705; Morawetz, Priv. Corp., sees. 201, 262, 265; Clarke v. Coal Co., 86 Iowa 436; Parsons v. Joseph, 92 Ala. 405; Brown v. DeYoung, 47 N. E. 863; Robinson v. Smith, 3 Paige 222; Fougeray v. Cord, 50' N. J. Eq. 200; 3 Pomeroy, Eq. Jur., sec. 1090; Pratt v. Pratt, 33 Conn. 456.

      Gage, Ladd & Small for respondents.
    (1) On the winding up of a corporation, its shareholders are entitled to participate in the distribution of its assets, after the payment of its debts, in proportion to the number of their shares. Taylor, Priv. Corp. (5 Ed.), sec. 788; Fisher v. Bank, 5 Cray 378; Smith v. Hurd, 12 Mete. 385; Hill v. Railroad, 41 Fed. 617; Plimpton v. Bigelow, 93 N. Y. 599; 5 Thomp. on Corp., sec. 7042. (2) There is.no right of contribution between joint wrongdoers. Much less may one of two joint wrongdoers enforce contribution against the children of his co-wrongdoer. Cooley on Torts (2 Ed.), pp. 166, 167, 171, 172; Kinkead’s Com. on Torts, secs. 84, 85, 86; Peck v. Ellis, 2 Johns. Ch. 136; Bartle v. Coleman, 4 Peters 188; Bolt v. Rogers, 3 Paige Ch. 157; Pierson v. Thompson, 1 Edw. Ch. 218; Anderson v. Saylors, 3 Head (Tenn.) 551; Railroad v. James, 73 Tex. 19; Berkson v. Railroad, 144 Mo. 211. (3) There can be no contribution between members of a corporation who have conspired to defraud it. Gilbert v. Finch, 173 N. Y. 462; Miller v. Fenton, 11 Paige 18; Brewer v. Boston Theatre, 104 Mass. 399; Heath v. Railroad, 8 Blatchf. 347; Sharp v. Call, 69 Neb. 72; Boyer v. Bolender, 129 Pa. St. 324; 4 Thomp. on Corp., sec. 4582; Attorney-General v. Wilson, 1 Craig & P. 1. (4) A court will not enforce contribution between joint wrongdoers although its refusal to do so may result in a distinct profit and advantage to one of them. Fisher v. Bank, supra; Morawetz on Priv. Corp. (2 Ed.), secs. 262, 265; New Sombrers,/ Phosphate Co. v. Erlanger, L. R. 5 Ch. Div. 113, L. R. 3 App. Cas. 18.
   LAMM, P. J.

The Central Bank of Kansas City went into voluntary liquidation in 1891. Subsequently (while in process of winding up) its affairs were lifted from the hands of its officers and put in charge of Strother, receiver, in the suit of D. A. Avery et al. v. Central Bank et al. Geo. E. Thayer was elected cashier of the bank in 1888, was acting in that capacity when the bank closed its doors and afterwards had charge of its assets and business until said receivership. Presently Strother and the bank brought suit against Thayer, the object being to recover sundry items of the bank’s funds wrongfully converted by Thayer. In one count of the petition it was charged that he wrongfully and fraudulently took $2,550 out of the moneys and property of the hank, deposited it to his individual account and converted it to his own use under color of a pretended sale or transfer by him to the bank of twenty-five shares of his stock, all done without any knowledge of officers and stockholders. In another it is charged that one J. W. Sponable was the owner of twenty-five shares .of stock and that Thayer, wrongfully and fraudulently .colluding with Sponable, wrongfully took from the moneys of the bank the further sum of $2,550 and deposited the same to the credit of said Sponable, which sum said Sponable converted to his own use; that this was done under color of a pretended sale or transfer to? the bank of said twenty-five shares of capital stock and that the wrongful conversion was without the knowledge of the officers and stockholders of the bank. These conversions are alleged to have been of the date of January 31, 1890'. On tender of the stock back by the receiver, demand for the return of the purchase price and refusal to pay, the bank and receiver sued for that and other items.

The blocks of stock so transferred to the bank are known as the “Cowling stock.” It seems that Cowling owed the bank, that he had been permitted to pledge to it fifty shares of its stock as collateral security for a loan; that Thayer paid the loan and became the owner of the stock, and thereafter all of it was cashed in at his instance and through his manipulation as cashier — the two (Thayer and Sponable) dividing the money share and share alike. Sponable was a non-resident of the State, was a stockholder in the bank and director but not an officer.

Such steps were taken and proceedings had in that case that judgment went against Thayer on the report of Judge Ball, referee, the judgment including* the Cowling stock item. On appeal here, that judgment was affirmed (184 Mo. 61). Sponable died in 1899. Thayer died June 1, 1903. Sponable’s estate is in process of administration in another State. Mrs. Thayer, appellant, is the administrator of Thayer’s estate. As such administratrix she paid the judgment to the Central Bank.

Eventually the creditors of the bank were satisfied in full and Thayer’s administratrix, on June 17, 1905, filed in the receivership case an intervening petition, therein alleging that the capital - stock of the bank was $100,000', divided into shares of $100 each '; that the estate of Thayer owned one hundred and sixty-five shares; that the estate of Sponable owned and owns $35,000 worth, par value, of the capital stock (i. e., 350 shares). The Cowling stock transaction is alleged in detail, the suit to recover on account of that transaction is alleged, and the substance of the petition is given, together with the result, of the suit, vis., the recovery of $5,100, with six per cent thereon from January 31, 1890 (with other amounts not material here), and the payment in full of that judgment by Thayer’s administratrix. That the receivership had reached the stage of final distribution among stockholders — the rights of creditors being out of the way. It is next charged that while Geo. E. Thayer was properly held responsible and mulcted for the whole amount wrongfully abstracted from the bank in the Cowling matter, yet the recovery against him included the share wrongfully received by Sponable; that, as to that item, Sponable participated in the unlawful manipulation and conversion of the funds, so recovered back; that it would work a great wrong to now permit the. estate of Sponable as holder of thirty-five per cent of the capital stock of the bank to receive thirty-five per cent of the proceeds of the judgment paid in by Thayer’s administratrix; that the estate of Sponable is not entitled in law or equity to receive a pro rata share of the judgment and should be ex-eluded from any distributive share in final distribution among stockholders — concluding as follows:

“Wherefore, your petitioner prays the court to state an account between said corporation and A. R. Strother, receiver of said bank, and each of its stockholders, as to the amounts which will be due each of them, respectively, on a division of the assets of said corporation, and in this accounting deduct a thirty-five one-hundredths part of said fund of $5,100 and interest thereon since January 30, 1890, on account of the holdings of said Sponable estate for the reasons aforesaid, and also deducting the pro rata share due on the one hundred and sixty-five shares of the capital stock now held by said George E. Thayer’s estate, and that this court frame a decree, whereby the money heretofore paid to the corporation and A. R. Strother, receiver, on said judgment, shall he prorated among the shareholders as follows, that is, 48,500 — 100 part thereof divided among the stockholders who did not assent to said transaction in said $5,100 and interest due thereon since January 30, 1890, in accordance with their respective interests, and that said J. W. Sponable’s estate be entirely excluded from participation in any manner whatever, in said $5,100 and interest due thereon, and that your petitioner be decreed to be entitled to $51,500'-100, part of said fund, being the balance thereof, that is, the pro rata part that would otherwise have gone to said Sponable in his estate, but for the reason hereinbefore mentioned, and also including the pro rata part on account of the Thayer stock now held by his said estate; and your petitioner prays the court for a decree that said plaintiff bank and its receiver state an account of amount of stock held by each shareholder, and ascertain the amount due each shareholder in said $5,100' and interest thereon, that the court ascertain the exact amount due the stockholders who did not assent to said transaction, and enter a decree for same, and1 that the amount due said Sponable’s estate be paid to this petitioner, and for such other and further relief as to the court seeming just and proper in the premises.”

The Sponable estate owned only one share of stock. Sponable had two sons, Frank W. and Fred T. Fred on July 26,1905, filed his petition in the receivership case for an order of distribution claiming to own 198% shares, evidenced by two certificates which he exhibited. On the same date Frank W. filed a similar petition claiming to own one hundred and sixty shares evidenced by two certificates which he exhibited.

On August 19, 1905, the court made an order on the receiver to publish a notice directed to all creditors and stockholders to present to the court and receiver their claims against the bank and its funds on or before the third day of the next October term and the receiver was ordered to report such claims to the court for its action.

Subsequently the receiver made such report showing (inter alia) that the stock involved in the Cowling transaction was in his charge; that the Thayer estate claimed one hundred and sixty-five shares of stock (not including the Cowling stock therein); that Frank Sponable claimed one hundred and sixty shares; that Fred claimed 198% shares; that the estate of J. W. Sponable owned one share but made no claim.

On the twenty-fourth of February, 1906, a hearing was had on the various petitions of stockholders and others for allowances and orders of distribution of moneys in the hands of the receiver, none concerning us but that of Thayer’s administratrix and those of Frank and Fred Sponable.

To sustain the issues on the part of the administratrix, the pleadings in the case of Strother and the bank against Thayer, the report of the referee and the judgment of the circuit court of Jackson county were allowed in evidence over the objection of counsel for the two Sponables that neither of them, nor was J. W. Sponable, a party to that suit nor bound by anything done or adjudged therein. For our purpose it will do to say that the petition in that case charged that Sponable wrongfully participated in the Cowling stock transaction in colluding and conspiring with Thayer to bring it about and in sharing in the illegal gains of it; that the referee found and reported the charges sustained, in that Thayer bought Cowling’s stock and paid the purchase price to the bank by Cowling’s direction to be applied on his indebtedness there; that “at that time or afterwards” twenty-five shares of the Cowling stock were transferred by Thayer to J. W. Sponable; that Thayer and Sponable held the stock for a year and collected a dividend on it and that finally the money Thayer had originally paid for the stock was by his direction abstracted from the bank’s funds and divided between him and Sponable by passing $2,550' to the credit of each. As already said that report was approved and the judgment rendered below was subsequently affirmed above.

On material points the oral testimony added something of value to the record proofs. It was shown orally that at the date of the wrongful conversion in the Cowling stock matter, Fred T. Sponable was a bookkeeper in the bank and possibly a .director, that the individual deposit slips evidencing a credit to J. W. Sponable and Geo. E. Thayer on account of the Cowling stock were in his handwriting and were made at the instance of Thayer. We take it the book entries on these items Were in Fred T. Sponable’s handwriting. At one time Fred T. Sponable was assistant cashier but the date is uncertain. We think it was after the conversion. That Thayer’s was the master mind directing the affairs of the bank is clearly shown. There is some evidence that Frank W. Sponable held a minor position as bookkeeper, but we cannot make out when that was. It is shown that the two Sponable boys got tbeir stock from their father as gifts at sundry times. The record is quite dark as to the date of these gifts. It seems the elder Sponable held several blocks of stock, evidenced by separate certificates, and that he gave these certificates to his son, one at a time at different dates. The evidence tends to show that one or more of these certificates was turned over after the bank closed its doors — possibly all of them, but this would arise more by way of inference than by positive proof.

As near as we can make out there are in the receiver’s hands $20,000, more or less, for distribution among all the stockholders. Of that sum, less than one-half is represented by the proceeds of the Thayer judgment. Of the total capital stock of the bank nearly one-half was held by stockholders concededly innocent of any participation in the Cowling stock manipulation and such innocent stockholders are concededly entitled to have their pro rata share of that judgment on distribution. No one is questioning the light of the Thayer estate to participate in the final distribution to the extent of its pro rata share of gain to accrue to its stock through that judgment.

On these facts, concessions and hypotheses, how the “amount in dispute” is sufficient to give the Supreme Court jurisdiction of this case is not clear to us. The question is not discussed in briefs, nor was it argued at our bar, nor was inquiry made by the court during oral argument. We will assume that learned counsel are right in assuming we have jurisdiction, though such assumption would be inconvenient as a precedent and is indulged now only by way of grace and because the record is cloudy on the point

The court below disallowed the contentions of the administratrix and refused to deduct from the shares of the two Sponable boys the pro rata share of the judgment, paid by Thayer’s administratrix accruing on the stock, and refused to return it to her as administratrix. It did, however, add to her one hundred and sixty-five shares of stock the fifty Cowling shares, then held by the receiver. Thus allowing to the Thayer estate two hundred and fifteen shares upon which it was entitled to distribution, treating the Cowling stock as equitably Thayer’s.

From such judgment and order the administratrix appealed.

Does the judgment accord with equity? Is it in 'contravention of the law? We think it should be affirmed. This, because:

I. While the intervening petition of appellant states that the Sponable estate owned three hundred and fifty shares of stock and says nothing about stock held by Frank or Fred Sponable, and while in strictness it was leveled at (1) keeping the Sponable estate by name from sharing in the Thayer judgment on account of stock ownership and (2) recovering the Sponable pro rata share back, and while in truth and in fact the Sponable estate owned only one share and made and makes no claim on that one share, yet the hearing proceeded on the theory that the petitions of Fred and Frank Sponable asserted a claim to the identical stock referred to in appellant’s intervening petition. The whole matter was well treated as an omnibus proceeding leading up to an adjustment of all claims and to final distribution. So that, the entire matter of the remaining assets of the defunct banking corporation was held in judgment. The pleadings were treated as sufficient to formulate, and direct the court’s attention to, the real controversy. Such being the theory below, we disallow the suggestion made by learned counsel for the Sponables, in effect that the averments of the petition (absent amendment) were insufficient to present to the court any issue as to the shares of Fred and Frank Sponable. This, because if their right to participate in the distribution was not questioned by the intervening petition, yet they turn up holding the shares which the intervening petitioner assumed belonged to the Sponable estate and they, by their own petition, bring their right of distribution before the court for its order and direction.

II. The Sponables objected to admitting in evidence the court files and judgment in the Thayer case. Their objection was overruled and it is suggested it should have been sustained. Further, that the presence of that improperly admitted proof is the very foundation upon which appellant has built her theory that the elder Sponable participated in the wrongful conversion of $5,100 of the bank’s money. But we do not read the record quite that way. There was other testimony to the effect that the bank took up the Cowling stock in equal parts from J. W. Sponable and Geo. E. Thayer and paid them individually therefor on the same day. There was testimony, we think, tending to show a joint and unlawful venture between them in that behalf. But the matter need not be pursued, nor need we consider the objection to the introduction of tbe files and judgment, since the judgment in the case at bar was in favor of the Sponables and they filed no bill of exceptions and took no appeal.

III. As the Sponables hold their stock • merely by way of gift from their father when the bank was in distress, we think they take and1 hold it (not as innocent purchasers, but) subject to whatever right the Thayer estate has (if any) to have that stock excluded 'from participation in the Thayer judgment on final distribution among stockholders and to have a return made of the Sponable share. In other words, the Sponable boys stand in the shoes of their father. We do not base that conclusion to any controlling extent on their knowledge of the joint wrong conduct of their father and Mr. Thayer. Presumably they were in the bank, in some sense, as representatives of their father’s large holding of stock, he living elsewhere. It is hardly conceivable they knew nothing of the Cowling stock transaction when their father’s interests were at stake and the details passed through their hands in bookkeeping. The evidence points to the fact that Fred Sponable was somewhat conversant with the matter, but there is no proof either of them was consulted or called upon to approve or disapprove it. But this is merely by way of argument. We prefer to let our ruling rest on the proposition that their father’s gift of the stock left it as if he yet held it and gave them his rights — neither more nor less; that they were not bona-fide purchasers and held subject to any equities existing in favor of the bank, or in favor of other stockholders after the corporation was in process of being dissolved and final distribution among shareholders was pending and to be decreed.

IY. It is argued that a court in winding up a corporation and making distribution among shareholders ought not to try controversies involving' private disputes between them relating to stock. But why not when the controversy relates to the distribution itself, and when distribution ought not to go (because it cannot proceed justly) until the controversy is determined? We are pointed to no case sustaining counsel, and if we were, we would doubt its soundness. Good sense is of the very essence of administering law, and, when on final distribution pending, shareholder A says that shareholder B ought not to share pro rata in a certain part of a fund held in the hollow of the hand of the court for the very purpose of distribution, but that B’s part comes to A, good sense points that the controversy should be settled out of hand and the road' cleared for final distribution. Tbe court holds the res, and should portion it out justly or not let go of it at all. Especially so where issues are framed and submitted to the court without objection, as here.

V. With preliminary questions at rest, we face the main proposition in the case, vis.: Conceding that the elder Sponable was a joint wrongdoer; conceding that the entire satisfaction for that joint wrong came from Thayer; conceding that the assets of the wronged corporation were increased by the amount of that satisfaction, then on final distribution should the court tread back and readjust alleged equities between joint tortfeasors, both being shareholders in the corporation, and both claiming to share in the final distribution of the corporate property?

(a) It cannot be denied that every shareholder, whether in the distribution of profits or in the winding up of the corporation, is entitled to participate in proportion to the number of shares held by him. [Taylor on Private Corps. (5 Ed.), see. 788.] Each shareholder is entitled to an aliquot part of the proceeds of the capital on winding up. [Fisher v. Essex Bank, 5 Gray l. c. 378.] In Smith v. Hurd, 12 Metc. l. c. 385, it was ruled that stockholders in banks have a separate right to a distributive share of the capital stock if any remain when the charter of the bank is at an end, and its debts paid. In Hill v. Railroad, 41 Fed. l. c. 617, it was ruled that after the payment of debts, corporate assets belong to and must be distributed equally and ratably among the stockholders therein as the beneficial owners thereof.

We find no contradiction to the proposition that in liquidation stockholders receive dividends pro rata after payment of debts.

(b) With the foregoing proposition established, we come to another equally well settled, vis.: That there is no right of contribution between joint wrongdoers. A person wronged by several may sue one, some, or all and get fnll reparation. He may recover against all and tben (in tbe absence of statute.) exact satisfaction of one. If one make full satisfaction for tbe joint wrong of several, tbe law leaves Mm in the pickle it finds him.

The right doctrine with the reason of it is put by Cooley (Cooley on Torts (3 Ed.), p. 261): “Whoever, by his pleadings in any court of justice, avows that he has been engaged with others in an unlawful action, or has concerted with them an unlawful enterprise, and that in arranging for or carrying it out he has been unfairly treated by his associates, or has suffered an injustice which they should redress, will be met by the refusal of the court to look any further than his complaint, wMch it will at once order dismissed. The following reasons may be assigned for this action: 1. The discouragement of all illegal transactions by distinctly apprising' every person who engag’es in them that the risk he incurs is not merely of being compelled to share with the others the loss that may follow; for this, in many cases, would be insignificant, and in all cases would be small in proportion to the size and formidable character of the combination. He is, therefore, given to understand that whoever takes part in an illegal transaction must do so under a responsibility only measured by the 'whole extent of the injury or loss; an understanding very well calculated to make men to hesitate who, under a different rule, would be disposed to give full scope to evil inclinations.” Other reasons are assigned by the learned author (q. v.).

After pointing out that the civil law denied contribution and that the French law was more indulgent,. Chancellor Kent, in Peck v. Ellis, 2 Johns. Ch. 138, says: “I doubt much of the wisdom of this indulgence. Public policy speaks loudly against it. There would be no safety to property if a large combination of trespassers were entitled to the assistance of courts of justice in the apportionment of the damage. The knowledge that each individual is responsible for the whole constitutes a great check. Where the contribution is asked for between parties jointly convicted of fraud, I should then, at least, prefer the doctrine of the civil law, and the sanction it has received from the stern, unaccommodating morality of Lord Kenyon. It appears to me more congenial with the spirit and genius of a court of equity, not to lend an encouraging •aid to parties to apportion between them by a nice and calculating hand the penalty of their injustice.”

In speaking to the point, Mr. Justice Baldwin, for the Supreme Court of the United States, in Bartle v. Coleman, 4 Peters l. c. 188, says:. “If either has sustained a loss by the bad faith of a parti ceps criminis, it is but a just infliction for premeditated and deeply practiced fraud, which, when detected, deprives Mm of anticipated profits, or subjects him to unexpected losses. He must not expect that a judicial tribunal will degrade itself, by an exertion of its powers, by shifting the loss from the one to the other; or to equalize the benefits or burdens which may have resulted by the violation of every principle of morals and of laws.”

In Pierson v. Thompson, 1 Edw. Ch. l. c. 218, it is said by Vice-Chancellor McCotjn: “The rule holds in equity, as well as at law, that there shall be no right of contribution between joint wrongdoers. This rule is founded in public policy and intended to check the disposition to combine in committing wrongs; by declaring that each individual concerned is liable to bear the whole loss or damage which may be occasioned.”

It is a maxim of the law that no man can make his own misconduct the ground for an action in Ms own favor. Another is that where the fault is mutual the law will leave the case as it finds it. It is a cardinal maxim of equity that he who seeks equity must come into court with, clean hands. It is against public policy to adjust equities between wrongdoers or to permit courts, maintained by the common purse, to fritter away time (mortgaged1 to justice) indemnifying those suffering loss by reason of violation of law.

If it be sought to bring the case at bar within any exception to the foregoing general rules it will be found that Thayer was deeper in the mud than Sponable in the mire. Thayer’s hand seems to have been the guiding hand in the Cowling stock matter. His was the managing mind. So, he was the managing officer of the bank. He represented both sides and dealt with himself in cashing that stock, and, on this record, Sponable acted an inferior role.

Nor does the case of Hobbs v. Boatright, 195 Mo. 693, sustain the position of appellant’s learned counsel. That case decides that the rule that courts will not aid a plaintiff who is in pari delicto with the defendant, is not one of universal application and will not be applied when to withhold relief would offend public morals to a greater extent than to grant it. But the case at bar does not lie within the reason of the exception maintained in the Hobbs case. Nor within the exception allowed in cases where the suing plaintiff is not in equal fault with defendant; for if there be an inequality in the degree of fault between Thayer and Sponable the difference is unmistakably in favor of the latter.

(c) The rule of no contribution applies between members of a corporation who have conspired to defraud it. We need not discuss the proposition for it is merely an application of the general doctrine that contribution is not enforced between wrongdoers (see authorities cited in respondent’s brief).

(d) And the rule of no contribution applies as between members of a corporation although the shares of one joint wrongdoer may be benefited by an increment of gain from a judgment recovered in the name of the corporation against a joint tortfeasor. In this case the corporation sued on behalf of the corporate entity. It recovered compensation for the entire wrong from Thayer, a shareholder. The proceeds of the judgment went into the corporate chest. In so far as that recovery swelled the corporate property it necessarily inured to the benefit of all the shareholders. By virtue of their stock ownership, it increased the value of the stock of both Thayer and Sponable. The law is not to blame for this result. The wrongdoer must carry all the burden incident to his Wrong doing and if he happens to be a shareholder in a corporation and conspires with other shareholders to injure it, he has no serious cause of complaint if, by virtue of the relation that corporate stock bears to corporate assets, the reparation exacted of him may inure to the benefit of shares owned by his joint wrongdoer.

Says Morawetz (Morawetz on Private Corp. (2 Ed.), secs. 262-265):

“The benefit of an action brought by a corporation necessarily results to all the shareholders equally, even where a portion of them were parties to the wrong, or have, by acquiescence, forfeited their equitable claims to redress. And this result is not, as a rule, unfair. The only possible method of working out the rights of the parties in a case of this kind is to preserve the fiction of a separate corporate entity, and to enforce the collective and individual rights and obligations of the shareholders separately.
“It is clear, therefore, that the acquiescence of a shareholder in a violation of the corporate rights or even a participation in the wrong, would not deprive him of his interest in the cause of action belonging to the corporation as an entity. He would have a share in the benefits of a recovery, even although his personal liability should be thereby increased. . . .
“It has been pointed out that the estate of a corporation is to be treated as that of a continuing institution, irrespective of the members at any particular time composing it. Each share represents an interest in the entire concern, and the several holders are entitled to equal rights irrespective of the time when they acquired their shares. Causes of action belonging to> the corporation increase the value of the corporate estate, and must be treated like any other assets; when enforced, they inure to the benefit of all the shareholders without distinction. It is plain, therefore, that a shareholder has an interest in all causes of action belonging to the corporation, whether they arose before or after he purchased his shares.”

A very discriminating and just English judge, Sir George Jessel, Master of the Rolls, in a case reported in L. R. 5 Ch. Div. l. c. 113-4 (New Sombrero Phosphate Co. v. Erlanger, — on appeal, affirmed in the House of Lords; L. R. 3 App. Cas. 1218), considered a proposition germane here. The suit was by a company to rescind a contract made with a syndicate, some of the members of which were stockholders of the company and parties to the fraud' charged, and to recover back money paid. A defense was made that to allow recovery would benefit the shares of stockholders participating in the conspiracy. Speaking to the point, Sir George said: “It was said, first of all, that it would be doing great injustice, that if we rescind the contract and order the return of this property, which appears to be, as I said before, a valuable property, though not worth so much as 110',000 pounds sterling, we shall thereby enable the company to obtain more than the value of the property, and divide it not only amongst those shareholders who knew nothing about the matter, but also amongst several shareholders who knew all about it. It is said that is not doing justice, and that the suit cannot be maintained in this form, because it will not do justice. But that argument goes too far, because it would apply to a case of the grossest fraud in every instance in which' one or more of the actual shareholders of a company took part in that fraud. If the argument were once allowed to prevail, it would only be necessary to corrupt one single .shareholder in order to prevent a company from ever setting the contract aside. It may be said you give to the shareholder, who was a party to the fraud, a profit, because he will take it in respect of his shares, and since as between co-conspirators, there is no contribution, therefore his brother conspirators who are made liable for the fraud, cannot make him repay his proportion. But the doctrine of this court has never been to hold its hand and avoid doing justice in favor of the innocent, because it cannot apportion the punishment fully amongst the guilty. A dozen parties to a fraud may be defendants, and one decree or judgment go against all, and if it is a fraud of such a character that none of them can bring an action for contribution, the plaintiff may at his will and pleasure enforce that judgment against one of them, and perhaps pass over the most guilty of them; still there is no remedy as between those who cannot commit the fraud. It is one of the punishments of fraud that there is no such remedy, and that a guilty party, though not the most guilty, may suffer the greatest amount of punishment. It is one of the deterrents to men to prevent their committing fraud. I do not see any ground of natural justice or any ground of policy which would prevent the court rescinding the contract in the case I have put.”

We can add nothing of our own by prolonging this discussion, or by restating doctrines announced by Mr. Morawetz and Sir George Jessel in the foregoing excerpts — doctrines acceptable to us.

A case is relied on by learned counsel for appellant (Brown v. DeYoung, 167 Ill. 549), but that case is no authority under the facts of this record. There certain stockholders brought suit against an officer and stockholder of the corporation to restore to the corporate estate certain amounts wrongfully abstracted. One of the plaintiffs was shown to have participated in the wrongs done by the defendant. The case proceeds on the theory that if recovery were had on behalf of the corporation and the moneys recovered once went into the corporate estate, there could be no contribution between wrongdoers. Accordingly, the court decreed a recovery to the innocent stockholders 'who were plaintiffs in their individual capacities, and cut out the participating wrongdoer who j oined as plaintiff. This, in order to avoid permitting the amount recovered to pass into the corporate chest. The case rides off on a peculiar state of facts. We are not called upon to follow it or refuse to follow it, because in this case there was no suit by innocent shareholders. Here there could have been no recovery on behalf of such shareholders in their individual capacities. The amount recovered actually went into the corporate estate, and, necessarily, on liquidation and final distribution, as a matter of law was bound to increase the stock dividend of all shareholders.

VI. It is argued that the case in hand is not one to enforce contribution between joint wrongdoers. That such view of it is putting the cart before the horse; that, at bottom, the case is simply one to prevent recovery by a joint wrongdoer. But we think counsel inadvertently argue ill in that behalf. From whom are the Sponables seeking to recover? From the Thayer estate? Not at all. The “recovery” from that estate is a fact accomplished — is water that has passed the mill and can turn the wheel no more. When the corporation in its own proper person collected the judgment and put the proceeds in its corporate chest, instantly, by operation of law, those proceeds inured to the benefit of corporate creditors, and. (when they were out of the way, as here) inured to the benefit of all the corporate shareholders. The legal and equitable title to the money, in such condition of things, flows from and is evidenced by the stock itself on distribution. Disguise the claim as you may, look at it from any point you will, the claim of the intervening petitioner is but trying to enforce contribution against a joint wrongdoer in a round-about way.

VII. But there is another reason why the court could not equitably grant the relief prayed by the intervening petitioner. The object of her petition was to recover back a pro rata share of the judgment. On what theory could she recover back what the law had adjudged must be paid by her intestate, and which was so paid? That matter was res adjudicata. If we held that the Sponable stock could not share in the judgment, we think we should still be inclined to hold that it would go to innocent stockholders and not be put back in the pocket out of which it was taken by the just hand of the law.

The judgment was right. Let it be affirmed.

All concur, except Valliant, J., who is absent.