author: WHITE, C. PER CURIAM:

text:
    STERLING P. BOND, Appellant, v. LUTHER H. WILLIAMS et al.
    Division Two,
    July 5, 1919.
    1. ASSAULT AND BATTEKY: Circumstances. In an action for damages caused by assault and battery it is always permissible to , show the circumstances under which the alleged assault was committed.
    2. -: Provocation: Punitive Damages: Mitigation: Malice. In an action for damages for assault and battery, wherein punitive damages are asked, whether malice were present is an issue, and ■ defendant may show the circumstances of provocation in mitigation of such damages, though such evidence is inadmissible in mitigation of actual damages.

      3. -: -: Abusive Language: Recent Occurrence. In order that evidence of provocation, such as abusive language, may be introduced in mitigation of punitive damages, the provocation must have occurred at the time of the assault, or so recently as to warrant an inference that the defendant was still laboring under the excitement caused by it.. But no definite limits for a “cooling time” can be set. So that where plaintiff, in argument to a jury, violently abused two witnesses, characterizing them as liars and perjurers, and an hour and a half afterwards or less, as he was going from the court house to his hotel, they assaulted him, evidence of the violent language used by him was admissible, in mitigation of punitive damages, in his action against them for damages for assault and battery.
    4. -: Malice: Definition. An instruction declaring “malice in its legal sense does not mean mere spite, ill-will or hatred, as it is ordinarily understood, but does mean that state of disposition which shows a heart regardless of social duty and fatally bent on mischief” is appropriate in an action for assault and battery, and does not materially differ in its meaning from one defining malice as “a wrongful act done intentionally without legal justification or excuse;” and if appellant asked an instruction defining malice in the latter words and respondent the former instruction, and both were given, appellant had the benefit of both definitions, and hence cannot complain that the court did not use only his to define the term.
    5. -: Verdict for Defendant: Nominal Damages. Where the evidence is that the injury inflicted upon plaintiff was slight, and he presented no request for nominal damages, though in law entitled to nominal damages, a verdict for defendants, approved by the trial court, and there being no assignment in the motion for a new trial that he should have been allowed at least nominal damages, will not be disturbed on appeal on the theory that the provocation could not mitigate the actual damages unless it amounted to justification, and no actual damages were allowed.
    6. VERDICT: Against Evidence: Motion for New Trial: Insufficient Assignment. An assignment in the motion for a new trial that the verdict is “against the evidence” and “against .the law,” however often repeated therein, is insufficient to permit a review by the appellate court of the evidence to show that the verdict was excessive, or inadequate, or unsupported in any respect by evidence, or erroneous in any specific particular, and in his action for assault and battery does not assign as a ground therefor that plaintiff was at least entitled to nominal damages.
    Appeal from St. Louis City Circuit Court. — Eon. Thomas L. Anderson, Judge.

      Affirmed.

      Lee Meriwether and S. P. Bond for appellant.
    (1) The court erred in striking out the words “aid, abet” in plaintiff’s amended petition. The rule is well settled that one who is present, aiding and abetting another who commits an assault is as much a principal as he who strikes the blow or fires the shot. Murphy v. Wilson, 44 Mo. 313; Gray v. McDonald, 104 Mo. 303; State y. Orrick, 106 Mo. Ill; Miles v. Lucas, 110 Mo. 219; Brouster v. Fox, 117 Mo. App. 711; Schraper v. Ostmann, 172 Mo. App. 610. (2) The court erred in allowing witness Marbury to testify to the language used by plaintiff in his argument to the jury. Cox et al v. Whitney, 9 Mo. 531; Collins v. Todd, 17 Mo. 537; Avery v. Ray, 1 Mass. 11; Hoagland v. Forest Park Highlands Amus. Co., 170 Mo. 343; Lee v. Wooley, 19 Johns. (N. Y.) 318; State v. Atchley, 186 Mo. 174, 179; Maynard v. Beardsley, 7 Wend. (N. Y.) 560, 564; Rochester v. Anderson, 1 Bibb. (Ky.) 428; Keiser v. Smith, 46 Am. Rep. 342, 364, 71 Ala. 481; Millis v. Forrest, 2 Duer, 310; Ireland v. Billiott, 5 Iowa, 478; Thrall v. Knapp, 17 Iowa, 468; Le Laurin v. Murray, 75 Ark. 232; Dupee v. Lentine, 147 Mass. 580; Murphy v. McGrath, 79 111. 594, 596; Linder v. Hine, 84 Mich. 517; Elsworth v. Thompson, 13 Wend. (N. Y.) 658, 663; Roach v. Caldbeck, 64 Yt. 593. (3) The court erred in allowing the evidence of the witnesses of what the appellant said an hour and a half or more before the assault concerning Marbury, Luther Williams and King Williams, or either of them, in his argument before the jury in the case of the State of Missouri against John McBrien and to draw their conclusions as to the effect upon the audience, etc., in mitigation of damages or in extenuating the offense. (4) The remarks of the appellant in the case of the State v. McBrien were made as an attorney in behalf of his client and were therefore privileged. 3 Am. & Eng. Ency Law (2 Ed.), 294, 295. (5) No instruction as to malice on behalf of defendant or defendants should be given under the law and the evidence in this case. The instruction as given is erroneous in itself. State v. Wray, 172 Mo. 639; State v. Scoggs, 159 Mo. 581. (6) The court erred in not granting plaintiff a new trial on the ground that the jury failed to award him actual damages. Le Lauren v. Murray, 75 Ark. 232, 238; Coxe v. Whitney, 9 Mo. 531; Collins v. Todd, 17 Mo. 537; Goldsmith v. Jay, 61 Vt. 488; Lovelace v. Miller, 43 So. (Ala.) 734.

      Fauntleroy, Cullen & Ray and B. H. Boyer for respondents.
    (1) The plaintiff having elected to proceed against defendants upon the charge of conspiracy and assault-as the result thereof must recover upon that theory or not at all — and hence must recover against all defendants or none. Aronsen v. Ricker, 185 Mo. App. 528, 533; Rice v. McAdams, 62 S. E. 774; Hoblichtel v. Yawbert, 39 Mo. 877; Laverty v. Yanarzdale, 65 Pa. St. 507; Hines v. Whitehead, 99 N. W. (Ia.) 1064; Shafer v. Ostman, 148 Mo. App. 648. (2) The question of whether, or not plaintiff had sustained any actual damage was also, by plaintiff’s own instructions, left to the jury, and, having found against plaintiff on each hypothesis, plaintiff cannot now be heard to complain. Berkson v. K. C. Cable Ry. Co., 144 Mo. 220; Ellis v. Harrison, 104 Mo. 250. (3) Appellant cannot complain of the court in not instructing. the jury differently because he caused such failure by failing to ask other or different instructions. Anchor Milling Co. v. Walsh, 24 Mo. App. 101. (4) Appellant asked and the court gave instructions virtually limiting his recovery to a verdict against all the defendants and warranted the jury in believing that unless he was so entitled to recover, he was not entitled to recover at all. Having thus limited himself and invited error, if error it be, appellant is in no position now to complain. Schafer v. Ostmann, 148 Mo. App. 648. (5) While it is the duty of the court to instruct the jury in writing on all questions of law arising in the trial of a civil case, yet it is not the court’s duty to so instruct unless instructions are asked: R. S. 1909, sec. 1987; Coleman v. Drane, 116 Mo. 387; Brown v. Printing Co., 213 Mo. 611; Nolan v. Johns, 126 Mo. 159; Marion v. Railroad, 127 Mo. App. 129; Morgan v. Mulhall, 214 Mo. 461, 464; Powell v. Railroad, 255 Mo. 456; Sweet v. Bunn, 195 Mo. App. 503; Willis v. Miller, 189 Mo. App. 325.
   WHITE, C.

Plaintiff brought this suit in the Circuit Court of the City of St. Louis, claiming damages for assault and battery. The petition alleged that on the 26th day of March, 1914, in the City of Farmington, the defendants unlawfully assaulted, beat and bruised the plaintiff, injuring him in a manner described. It was further alleged that the assault and battery were in pursuance of a conspiracy. Judgment was prayed for actual damages in the sum of five thousand dollars and punitive damages in the sum of ten thousand dollars.The defendants filed a general denial. On trial of the ease there was a verdict and judgment for the defendants from which the plaintiff appealed. The circumstances out of which the alleged cause of action arose are as follows:

On March 26, 1914, the plaintiff, who is an attorney, was engaged at Farmington representing the defendant in the case of the State v. John O’Brien. Two of these defendants, Marbury and Luther Williams, were witnesses for the State in that trial. Defendant George K. Williams was the brother of Luther. In his argument to the jury on behalf of his client which took place in the evening, the plaintiff violently abused Williams and Marbury in the presence of a number of people, characterizing them as liars and perjurers. All three of the defendants were, in the courthouse at the time, sitting in different parts of the house. After the argument was over and the case submitted to the jury, the plaintiff and his associate- counsel walked out of the courthouse and went across the.street to the hotel. As they approached the hotel the defendant Marbury accosted the plaintiff and demanded that he apologise for what he had said in the course-of his speech. It appears that Marbury attempted to strike Bond, but was held by a friend from behind, so that his purpose in that respect was frustrated. About that time defendant Luther Williams appeared and struck the plaintiff, knocking him down. Defendants offered some testimony to the effect that when Marbury accosted the plaintiff he made a motion as if to draw a weapon, and then Luther Williams struck. There is also some evidence that Mr. Bass, Mr. Bond’s associate, made a like demonstration before Williams struck.

Each of the defendants testified that he was aroused to extreme anger by the language of the plaintiff, but that there was no concert of .action, and no conversation between them after the plaintiff made his speech, until the encounter took place. The case was submitted to the jury on instructions offered by the plaintiff to the effect that if they should find that the defendants, or either of them, acting alone or in concert with the same purpose, assaulted and beat the plaintiff without justification or excuse, they should find for the plaintiff.

I. The principal error complained of was the admission of evidence offered by the defendants showing the abusive language used by the plaintiff while addressing the jury. This was testified to by each of the defendants and other witnesses. The defendants testified that they were very much outraged by the language used, and that the excitement and indignation remained with them up to the time of the assault.

In an action for damages caused by assault and battery it is always permissible to show the circumstances under which the alleged assault.was committed. Where punitive damages are asked, whether malice was present is an issue, and it is permissible to show the circumstances of provocation in mitigation of such damages, though such evidence is inadmissible in mitigation of actual damages. [Joice v. Branson, 73 Mo. 28; Gray v. McDonald, 104 Mo. 1. c. 314.] In order, however, that evidence of provocation, such as abusive language, may be introduced for the purpose of mitigation the provocation must have occurred at the time of the assault, or so recently as to warrant an inference that the defendant was still laboring under the excitement caused by it.

Appellant, while admitting the principle of law stated, argues that a sufficient time had elapsed after the provocation and before the assault to show that the attack was made in cool blood and with malice. The authorities are not altogether in agreement as to what would be sufficient time for the passions aroused by such a provocation to subside so that it would be presumed the assault was deliberate; that is, they do not set definite limits for a period designated as a “cooling time.” [State v. Wieners, 66 Mo. l. c. 27.] In general it is said that the length of time necessary to remove the excuse of provocation depends upon the circumstances of each case. As said by this court in the case of State v. Grugin, 147 Mo. l. c. 51: “No precise time, therefore, in hours or minutes, can be laid down by the court as a rule of law, within which the passions must be held to have subsided and reason to have resumed., its control, without setting at defiance the laws of man’s nature, and ignoring the very principle on which provocation and passion are allowed to be shown, at all, in mitigation of the offense.” This passage is quoted by the court from the case of Maher v. People, 10 Mich. 212.

The appellant cites two Missouri cases in support of his position. The case of Coxe v. Whitney, 9 Mo. 531, where plaintiff, editor of a newspaper, published an article reflecting on defendant’s wife. Two days later, defendant went to the room of plaintiff and made the assault. The court held that evidence of the provocation was inadmissible in mitigation of damages. The court said, p. 535: “The evidence of provocation which is allowed to mitigate the damages must be so recent ‘ as to induce a fair presumption that the violence was done during the continuance of the feelings and the passions excited by it.’ ” The court then makes this statement, 1. c. 536: “But ira furor brevis est: What is done twenty-four or forty-eight hours after the provocation received, is not the result of that passion, but is the deliberate infliction of vengeance for an injury, real or supposed.”'

The other case is Collins v. Todd, 17 Mo. 537. In that case the plaintiff used insulting language to the defendant’s niece, and this was communicated to the defendant on Sunday. The assault occurred on the succeeding Monday or Tuesday, and the court held evidence of the provocation was inadmissible, because sufficient time had elapsed to allow the presumption that the person had cooled. No other case is cited in this State by appellant holding that a shorter- time between the provocation and the assault was sufficient to ■ exclude the evidence, nor do cases in general from other States generally support the appellant’s position. In the case of Dupee v. Lentine, 147 Mass. 580, the provocation occurred sometime before the assault, but the defendant learned of it just ten minutes before the assault, and the evidence was held inadmissible, but that case is contrary to the weight of authority. The case of Thrall v. Knapp, 17 Iowa, 468 is cited. In that case the provocation occurred a week before the assault, but information in'relation to it was conveyed to the ■ defendant three hours before and the evidence of provocation was held improperly admitted. It appears in that case that the court gave attention to the time ■'in ■which the provocation occurred rather than the time at which the information reached the defendant. It was said that “no circumstances or provocation on the week -before or the day before the assault, or any other time than the identical day of the assault, could be offered in' evidence. ”

In the ease of Prentiss v. Shaw, 96 Am. Dec. 475, 50 Maine, 427, the provocation was two hours before the assault, and the evidence was held admissible.

The case of Ward v. White, 86 Va. 212, 19 Am. St. Rep. 883, is where an abusive article appeared in a newspaper concerning the defendant and the next day the defendant committed the assault for which he was sued. The newspaper article was held properly admitted.

In Biggs v. State, 29 Ga. 723, the plaintiff offered an indignity to the defendant’s wife one evening and on the following morning the assault occurred. Evidence of the affront was held admissible.

In the case of Dolan v. Fagan, 63 Barbour (N. Y.) 73, the plaintiff insulted the defendant with opprobrious language on a number of occasions before the assault took place. The trial court ruled that the defendant could show anything that took place on the day of the assault or the day before, but not what took place several days before. The case was reversed on the ground that the ruling excluding what took place several days before was erroneous.

In Genung v. Baldwin, 79 N. Y. Supp. 569, it was held that where the defendant on the same day and prior to the assault read some article in defendant’s newspaper severely criticizing him, it might be shown in evidence in an action for assault and battery. There is a similar ruling in Marriott v. Williams, 152 Cal. 705.

In the ease of Leachman v. Cohen, 91 S. W. (Tex.) 809, a livery-stable keeper hired a horse to a young man and while the horse was out word came to him that the young man was abusing the horse and driving recklessly. When the young man came in, it appears several hours later, the livery-stable keeper assaulted him, was sued for damages afterwards^ and it'was held that the abuse of - the horse and the knowledge brought to the defendant was admissible in mitigation. In that case the rule was thus stated, p. 810: “Immediate provocation is such as happens at the time of the assault or so recently before it as to induce the presumption that the violence was committed under the immediate and continuing influence of a passion thus wrongfully excited.’ ’

The case of Cook v. Neely, 143 Mo. App. 632, is where a school-teacher violently whipped the son of the plaintiff at the afternoon recess; that evening about nightfall the defendant met the plaintiff and assaulted him. The suit was for damages caused by that assault. The Kansas City Court of Appeals held that the evidence of the provocation by whipping the plaintiff’s son was properly admissible in mitigation of exemplary damages. In that case the provocation occurred several hours before the assault, and the boy who was whipped conveyed the information to his father as soon as he went home after the dismissal of school; two or three hours must have elapsed between the time the defendant was first excited by the information and the time the assault took place.

The same question arises in criminal prosecutions for murder where the evidence of provocation is offered to reduce the grade of the offense to manslaughter. “The cooling time” is spoken of in such cases in the same manner as it is used in civil cases for assault and battery. To reduce a homicide to manslaughter in the fourth degree under the statute, Section 4467, the killing must have occurred “in the heat of passion.” A leading ease is State v. Grugin, 147 Mo. 39, quoted above. In that case the defendant was charged with murder. The man killed had committed an outrage upon his daughter some days before. The father learned of the outrage at nine o’clock in the morning, he hunted up the offender and killed him at three o’clock in the afternoon. The evidence of the provocation and the information was held admissible. It was held that character of the provocation and its tendency to continue the excited stafe of mind must always be considered to determine whether the cooling time has been sufficient. In that case the provocation was extraordinary. It has been cited in later cases without criticism. [State v. Vest, 254 Mo. l. c. 465.]

While cases showing the provocation which would reduce homicide to manslaughter are cited, it is apparent that the provocation which would mitigate punitive damages in a civil action would not always be sufficient to reduce homicide to manslaughter; for instance, mere words are held not sufficient provocation to reduce homicide to manslaughter,-but mere words, it is held, may produce a state of mind and qrouse a passion that would mitigate damages caused by consequent . assault.

Appellant asserts that his violent language offered in evidence occurred an hour and a half before the assault. The evidence fails to show the exact time. Defendants assert that the timé was less. At any rate, after the offensive language was used the court continued in session and another address to the jury followed that of plaintiff, before the adjournment. The assault took place within a very few minutes after court adjourned. Under all the authorities the evidence was admissible and it was for the jury to say whether the defendants under the circumstances were actuated by malice, which would authorize punitivé damages. The instructions directed the jury that they could consider such evidence only in connection with an award of punitive damages.

II. Appellant complains of an instruction given on behalf of defendants defining malice as follows: “Malice in its legal sense does not mean mere spite, ill-will or hatred, as it is ordinarily understood, but does mean that state of disposition which shows a heart regardless of social duty and fatally bent on mischief.”

That is the definition usually given in homicide cases where the presence or absence of malice may determine the grade of the crime, bnt the definition has been approved by this court in an action for damages for assault. [Morgan v. Durfee, 69 Mo. l. c. 480.] And it seems to be a generally approved definition. [18 R. C. L. p. 2, sec. 2.] The case of Morgan v. Durfee has been cited with approval in the case of Boyd v. Railroad, 236 Mo. l. c. 93.

Appellant does not contend that the definition is erroneous so far as it goes, but complains that the usual definition found in the books should have been added, to-wit: malice means a wrongful act done intentionally without legal justification or excuse.

The case of State v. May, 172 Mo. 639, includes both definitions in one, and upon that case the appellant bases his complaint. In reality, however, the two definitions are not very different in meaning. At the instance of plaintiff the court gave an instruction containing the definition which the appellant complains was left out of the defendant’s instruction; so that the plaintiff had the benefit of both, and has no cause for complaint.

III. Finally the appellant argues that the verdict ought to be set aside and a new trial granted because he was allowed no actual damages. The argument is that the provocation could not mitigate the actual damages unless it amounted to justification. Instructions given on behalf of the plaintiff authorized the jury to find for the plaintiff against all defendants, provided there was a conspiracy or they acted together for a common purpose. There was little or n*o evidence on which to base that instruction, and the verdict of the jury is conclusive that there was no conspiracy. George K. Williams, defendant, didn’t attempt to assault the plaintiff at all; Marbury made as if to assault him, but was held by friends, so that he committed no assault. The only assault of which there was any evidence was made by Luther H. Williams. Since there was a finding of no conspiracy, and no concert of action this objection of the appellant can only apply to the assault made by Luther Williams. Some of the evidence indicates that the injury inflicted upon plaintiff was of a very slight nature, so that the jury might have found his damage was only nominal. This court is slow to set aside a verdict, in a case of this character, on the ground of inadequacy. [Pritchard v. Hewitt, 91 Mo. 547; Dowd v. Air Brake Co., 132 Mo. 579.] There was some evidence, though slight, that plaintiff and his companion made- hostile demonstration before Luther Williams struck. The jury might have found plaintiff was not without fault at that time. [McCarty v. St. Louis Transit Co., 192 Mo. l. c. 403; Gorham v. St. L., I. M. & S. E. Co., 112 Mo. App. l. c. 208.]

The trial court overruled plaintiff’s motion for a new trial, and therefore determined the verdict was not against the weig'ht of evidence.

It is possible that the plaintiff would have been entitled to nominal damages had the question been properly presented. Some authorities hold that where the action sounds in damages only, the failure to prove actual damages is a failure to make out a case, and, though an actual violation of plaintiff’s rights is proven, there can be no recovery. [8 R. C. L. sec. 5, p. 426; Woodhouse v. Powles, 8 L. R. A. (N. S.) l. c. 787.] On the other hand, the general rule is that any violation of one’s rights, whether actual damages is inflicted or not, whether the action sound in tort for personal injuries, or otherwise, in the absence -of actual damages, at least nominal damages may be recovered. [1 Suth. on Damages, sec. 9; Dailey v. Houston, 58 Mo. 361, l. c. 369; King v. St. Louis, 250 Mo. 501,l. c. 513.]

But the plaintiff did not assign as a ground for sustaining his motion for new trial that he should have been allowed at least nominal damages against Luther Williams. The objection to the verdict, repeated in different forms in his motion for a new trial, is that the verdict was “against the evidence” and “against the law.” Such objections uniformly have been held insufficient to permit a review by this court of tbe evidence to show the verdict was excessive, or inadequate, or unsupported in any respect by evidence, or erroneous in any specific particular. [Polski v. St. Louis, 264 Mo. l. c. 462; Disinfecting & Mfg. Co. v. Bates Co., 273 Mo. l. c. 304; Cook v. Clary, 48 Mo. App. l. c. 169; State v. Scott, 214 Mo. l. c. 261; Raifeisen v. Young, 183 Mo. App. l. c. 511; Brosnahan v. Best Brewing Co., 26 Mo. App. l. c. 390.]

All instructions asked by plaintiff were given except one relating to the exclusion of evidence. We are not prepared to say the trial court erred in overruling the plaintiff’s motion for a new trial.

The judgment is affirmed.

Roy G., absent.

PER CURIAM:

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

Williams, P. J. , and Walker, J., concur, Faris, J., concurs in result.


source: Caselaw Access Project

author: GRAVES, J. GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. BERT JOHNSON, Collector, v. MERCHANTS & MINERS BANK et al., Appellants. THE STATE ex rel. BERT JOHNSON, Collector, v. CENTRAL NATIONAL BANK OF CARTHAGE et al., Appellants.
    In Banc,
    July 7, 1919.
    1. TAXATION: Board of Equalization: Judicial Acts: Certiorari. The State Board of Equalization in fixing the value of property in any county acts judicially, and its valuations have the force and effect of judgments of courts. Of course, if in making its valuations it exceeds its powers or statutory jurisdiction, and such fact appears upon its record, the courts can quash its judgment by certiorari; but the courts cannot nullify its judgment in a collateral proceeding.
    2. _:-: -: Collateral Attack. The action of the State Board of Equalization being judicial in character its judgment cannot be attacked in a collateral proceeding. To be overthrown there must be a direct attack upon the judgment itself for the purpose of vacating, annulling and setting it aside. It cannot be annulled .by a showing, when suit is brought on a tax bill against a bank, that the board valued and assessed defendant’s property at one half its true value and all other personal property in the county at forty per cent of its true value. Such a defense would be a collateral attack on the judgment, and is therefore unavailable, and evidence to show such discrimination is incompetent.
    Appeal from Jasper Circuit Court. — lion. R. A. Pearson, Judge.
    Judgment modified, and affirmed.

      J. W. Halliburton, A. E. Spencer and Howard Gray for appellants.
    (1) The evidence proves conclusively that during the years 1911 to 1915, inclusive, hank stocks were assessed in Jasper County at fifty per cent of their true value, while no other property in the county was assessed at more than forty per cent of its value; that banks, prior to the institution of these suits, paid all the taxes which should have been assessed against them had they not been assessed higher than other property according to value. Mercantile Trust Co. v. Schramm, 190 S. "W. 886; Iowa Cent. Ry. Co. v. Board of Review, 157 N. W. 731; Ewert v. Taylor, 160 N W. 797. (2) The evidence shows that it had been the practice, understanding and settled policy, for many years, for the assessor and the County Board of Equalization in Jasper County to assess the personal property of the county on a basis of forty per cent of its true value, and real estate on a basis of thirty per cent; that the State Board of Equalization, with the certificate of the county clerk before it, showing that real estate and personal property had been assessed on this basis, arbitrarily raised the assessment on bank stock to fifty per cent. This is unjust and an illegal discrimination, and it is no answer to say that the stockholders of the banks have no right to complain because their property was not assessed at its full value in money as required by law. Bank v. Treasurer of Lucas Co., 25 Fed. 749; Eminence Distillery Co. v. Henry Co. Board, 200 S. W. 347; Porter v. Langley, 155 S. W. 1042; Lively' v. Railroad Co., 120 S. W. 852; Chicago, B. & Q. R. R. Co. v. Atchison County, 54 Kan.' 781; Iowa Cent. Railroad Co. v. Board of Review, 157 N. W. 731; First Natl. Bank v. Chapman, 173 U. S. 205; First Natl. Bank v. Christianson, 118 Pac. 778; First Natl. Bank v. McBride, 149 Pac. 353; State ex rel. v. Osborn, 83 N. W. 357; Drew Co. Timber Co. v. Board, 187 S. W. 942; Barz v. Board of Equalization, 111 N. W. 41; Nevada-California Power Co. v. Hamilton, 235 Fed. 317. (3) The plaintiff claims that even though all the matters alleged in defendants’ answer are true, inasmuch as this is an action at law for the taxes no equitable defense can be successfully made, and that the defendants are absolutely without any remedy. We claim all of the authorities are to the contrary. First National Bank v. Treasurer of Lucas Co., 25 Fed. 749; Nevada-California Power Co. v. Hamilton, 235 Fed. 317; Arosin v. London & N. W. Am. Mtg. Co., 83 N. W. 339; Board of Comrs. G-arfield Co. v. Field, 16(2 Pae. 733; Porter v. Langley, 155 S. W. 1042; Raymond v. Chicago Union Trust Co., 207 U. S. 20; First Natl. Bank v. McBride, 149 Pac. 353; Chicago, B. & Q. R. Co. v. Atchison Co., 54 Kan. 781; First Natl. Bank v. Christianson, 118 Pac. 778. (4) We admit that the general rule is that where the laws of a State provide for a hearing before the State Board of Equalization and an appeal from its decision,. the remedy is exclusive; but in this State there is no provision for the appearance before the State Board, for any hearing or an appeal from its decision in assessing bank stock, and the only remedy the taxpayer has is to enjoin the collection-of the excess or, when sued for the taxes, to set up the facts as he would were he bringing a suit to enjoin. In this case the defendants are not-in a position to bring suit to enjoin because until these suits were filed no effort was made or had been made to collect the excess, but there was a tacit understanding that the same would not be collected. In any event, in this State the old common law procedure of requiring the defendants to bring a suit to enjoin the collection of a tax and ask to have the collector’s suit at law postponed until the court had heard the equity case, no longer prevails; but under our code all can be .accomplished in the one suit by the equitable answer to the plaintiff’s cause of action. .Martin v. Turnbaugh, 153 Mo. 172; Swope v. Weller, 119 Mo. 556; Dwyer v. Rohan, 99 Mo. App. 120.

      R. A. Mooneyhan and J. D. Harris for respondent.
    (1) The State Board of Equalization is a creature of the Constitution of the State, being created by Section 18 of Article 10 of the Constitution. By that section it is made the duty of the board to adjust and equalize the valuation of real and personal property, among the several counties. This court has ruled that the board has the inherent power to proceed to the performance of these duties without legislative authority. Railway v. State Board of Equalization, 64 Mo. 294; State ex rel. v. Vaile, 122 Mo. 33. It is further provided in the foregoing section of the Constitution that the board shall perform such other duties as are or may be prescribed by law. The Legislature has by Section 11412 provided the plan of equalization to be pursued by the State Board of Equalization, in its performance of its duties. And as there must be an end to the matter of affixing values somewhere, it is a wise law that has made the finding of the State Board of Equalization final, so long as its proceedings are not vitiated by fraud or illegality. Mercantile Trust Co. v. Schramm, 269 Mo. 489, Missouri ex rel. Hill v. Dockery, 191 U. S. 165, 48 L. Ed. 133. (2) The Supreme Court of the United States, that the State Board of Equalization has the power to classify the various kinds of property for the purpose of fixing valuations thereon. Mercantile Trust Co. v. Schramm, 269. Mo. 489; Missouri, ex rel. Hill v. Dockery, 191 U. S. 165, 48 L. Ed. 133; Copper Queen Consolidated Mining Co. v. Arizona, 206 U. S. 474. (3) The State derived its authority to assess national bank stock from Sec. 5219, U. S. R. S. 1878. (4) The Act of Congress does not make the tax on personal (or real) property the measure of tax on bank stock, but the tax on moneyed capital in the hands of individual citizens. Money invested in railroads, mining property and stocks, business corporations and savings banks' do do not fall within the class of “moneyed capital” in the sense used in the Federal statute, and it has been held that these investments do not come into competition with national bank stock, and national hanking, within the prohibition. First National Bank of Aberdeen v. Chehalis County, 166 U. S. 445; Hepburn v. Carlisle Burrough School Director, 90 U. S. (23 Wall.) 480, 23 L. Ed. 112; First National Bank of Aberdeen v. Chehalis County, 166 U. S. 452, 41 L. Ed. 1075. (5) Mere over-valuation is no defense. State ex rel. v. Western Union Tel. Co., 165 Mo. 502. (6) Merely because witnesses testify that the defendants’ properties have been assessed at a higher per cent of the true value thereof by the State Board of- Equalization than other classes of property, is not sufficient to overcome the judgment and decision of the State Board of Equalization. And even though, in the opinion of witnesses for the defendants their property was equalized at fifty per cent of its true value, while other classes of property were equalized at forty per cent of the true value thereof, in the. opinion of such witnesses, still this evidence cannot avail the defendants here, since the solemn judgment of the State Board of Equalization can not be impeached by such evidence. State ex rel. v._ Western Union Tel. Co., 165 Mo. 502; C., B. & Q. R. Co. v. Babcock, 204 U. S. 585; Coulter v. L. & N. R. Co., 196 U. S. 599; Williams v. Garfield Exchange Bank, 134 Pac. (Okla.) 863; Southern. Spg. R. & C. Co. y. Board, 139 Pac. (N. M.) 159; Ray v. Armstrong, 131 S. W. 1039; People v. Pitcher, 156 Pac. 812; Hacker v. Howe, 101 N. W. (Neb.) 255; State ex rel. v. Hann. & St. J. Ry. Co., 101 Mo. 127; W ard y. Board of Equalization of Gentry County, 135 Mo. 309; Stanley v. Supervisors, 121 U. S. 535; Mercantile Trust Co. v. Schramm, 269 Mo. 489. (7) The State Board of Equalization in performing its duty, acts judicially, and its judgments are not open to collateral attack. State ex rel. v. Western Union Tel. Co., 165 Mo. 517; Western Union Tel. Co. v. State ex rel. Gottlieb, 190 U. S. 426, 47 L. Ed. 1122; State ex rel. y. Yaile, 122 Mo. 47; State ex rel. v. Neosho Bank, 120 Mo. 161; State ex rel. v. Baker, 170 Mo. 383; Hann. & St. J. Ry. Co. v. State Board of Equalization, 64 Mo. 294.
   GRAVES, J.

These are two actions to recover delinquent, taxes. They are consolidated and tried together below, and are so presented here. The first is a case against a state bank, and the second case is against a national bank.

It is claimed that the State Board of Equalization raised the assessed value of bank stock in Jasper County from forty per cent of their value to fifty per cent of their value, whilst said State Board of Equalization left other personal property stand at an assessed valuation of forty per cent of the value.

The tax bills in these cases were based upon the assessed valuation as certified to the county by the State Board of Equalization. The suits cover delinquencies for the five years prior to their institution. During these years and for some time prior, the banks had been paying on a forty per cent assessed valuation, instead of the fifty per cent assessed valuation as fixed by the State Board. This is the claim of the defendants. As a fact they paid about three-fourths of their taxes each year and these suits are to collect the unpaid portions for the five years next before the institution of these actions.

The tax bills Avere based upon the valuation fixed by the State Board of Equalization, and the relator is entitled to recover in this action, unless the judgment of the State Board of Equalization can be successfully attacked in this proceeding. Evidence Avas admitted over the objection of plaintiff, Avhich Avas offered for the purpose of nullifying the judgment of the Board of Equalization. But after hearing it all the trial court entered judgment for relator. In our vieAV of the laAv further details are unnecessary.

I. It is settled doctrine in this State that boards of equalization, including the county boards of equalization, as well as the State Board of Equalization, act judicially.

As to the State Board of Equalization the statute, Section 11410, thus reads: “The State Board of Equalization shall have power to send for persons, and papers, to administer oaths through its officers or agents, and to take all evidence it may deem necessary to ascertain the value of the property in the different counties in the State.”

So the very statute itself indicates the judicial character of its acts. This court has so ruled as to the State Board in State ex rel. v. Western Union Telegraph Co., 165 Mo. l. c. 517, Avhereat it is said: ‘ ‘ The defendant cannot- avail itself of these cases, for the reasons, first, that it seeks to raise the question of discrimination by a defense to an action at law to collect the taxes, and thereby collaterally attacks the judgment of the board of equalization; second, that such questions can only be raised by a direct attack, in equity, and then only upon the condition precedent that it pays or tenders the amount justly due and only asks to have the collection of the excess restrained. This the defendant has not done in this case.”

The county boards of equalization perform judicial functions, as is clearly indicated by Article 3 of Chapter 117, Revised Statutes 1909. And this court has so held. Thus in Black v. McGonigle, 103 Mo. l. c. 198 et seq., is said: “According to the plain letter of the statute, the board has not only the power to hear complaints, but it has' the power, of its own motion, to equalize the valuation for the purposes named in the law, namely, so that each tract of land shall be entered at its ‘true value.’ In performing these duties the board acts judicially; this has been often held, and the very nature of the duty to perform makes it a judicial one. [St. Louis Mutual Life Ins. Co. v. Charles, 47 Mo. 465; Railroad v. Maguire, 49 Mo. 483; Cooley on Taxation (1 Ed.), 291.]”

To like effect in the case of State ex rel. v. Bank, 234 Mo. l. c. 197, whereat we thus spoke: “In making the order raising the valuation of the property for taxation in Christian County for the year 1905, the County Board of Equalization was acting in a judicial capacity, and, under the well-settled rule of law applicable to judgments, its action was not subject to collateral attack. [Black v. McGonigle, 103 Mo. 192; State ex rel. v. Vaile, 122 Mo. 33; State ex rel. v. Western Union Tel. Co., 166 Mo. 502; State ex rel. v. Lumber Co., 198 Mo. 430.]”

So also in State ex rel. v. Lumber Co., 198 Mo. l. c. 439, we said: “But the County Board of Equalization had jurisdiction over the lands taxed for levee purposes (Sec. 8449, R. S. 1899), and the authority to raise the assessments for benefits against all the lands (Sec. 9131, R. S. 1899), and in so doing it acted judicially. [Black v. McGonigle, 103 Mo. 192; St. Louis Mutual Life Ins. Co. v. Charles, 47 Mo. 465; Railroad v. Maguire, 49 Mo. 483; Cooley on Taxation (1 Ed.), 291; Ward v. Board of Equalization, 135 Mo. 309.] In raising the rate of taxation against the lands in the levee district it was sufficient for the board to designate a percentage of increase. [1 Cooley on Taxation (3 Ed.)j 786.] It is not claimed that the Board of Equalization failed in any of its duties. Its proceedings were regular, proper notice given, and the result legally published and certified as required by the statute. The act of the board in raising the assessment being judicial in its character is not subject to attack in this collateral way.”

Other cases along the same line are State ex rel. v. Vaile, 122 Mo. l. c. 47; Railroad v. McGuire, 49 Mo. l. c. 483; Black v. McGonigle, 103 Mo. l. c. 198; State ex rel. v. Board of Equalization, 256 Mo. l. c. 461. In the latter case, supra, Bond., J., said: “The functions of the board of equalization in judging the assessments of property are judicial, and if in the exercise of that power it shall act without rightful jurisdiction, and this should appear from the fact of its record, then certiorari is the proper remedy to quash its record and proceedings.”

So that from the beginning to this time we have held the proceedings of these boards (both county and State) to be judicial in character. Not only so, but we have given their proceedings in fixing values the force of judgments. Other cases from this State might be cited, but these are illustrative of the whole line of our cases. Of course if such bodies in acting (as stated by Bond, J., supra) exceed their constituted power or jurisdiction, and such fact appears upon their records, then we can reach their judgments by certiorari. Such is the rule as to courts.

II. It being conceded (as it must be) that the action of the State Board of Equalization was judicial in character, then it must be held that its judgment cannot be attacked in this collateral proceeding. That the attack upon the judgment of the State Board of Equalization is collateral is clear from the books.

In 23 Oyc. 1062, the difference between direct and collateral attacks is clearly stated, thus: “The term ‘collateral’ as used in this connection is opposed to ‘direct.’ If an action or proceeding is brought for the very purpose of impeaching or overturning the judgment, it is a direct attack upon it. Such is a motion or other proceeding to vacate, annul, cancel, or set aside the judgment, or any proceeding to review it in an appellate court, whether by appeal, error, or certiorari, or a bill of review, or, under some circumstances, an action to quiet title. On the other hand, if the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may be important or even necessary to its success, then the attack upon the judgment is collateral.” The same authority on the same page says: “The rule against collateral impeachment of judicial decisions applies to the determination of State and county officers or boards of officers, who, although not constituting a court, are called upon to act judicially in matters of administration, such as boards of county commissioners, boards of land commissioners, or railroad commissioners, or a State Board of Equalization, ’ ’

Our rule as to what is collateral attack accords with Cyc. supra. Thus in Lovitt v. Russell, 138 Mo. l. c. 482, Gantt, P. J., said: “Now it must be borne in mind that the proceedings, under review and collaterally assailed in this case, were in the Circuit Court of Jackson County, a court of general jurisdiction. No principle of law is more universally accepted in this country than that the judgment of a court of competent jurisdiction so long as it stands unreversed cannot be impeached in a collateral proceeding, on account of mere errors, or irregularities, not going to the jurisdiction. [Union Depot Co. v. Frederick, 117 Mo. 138; Lingo v. Burford, 112 Mo. 149; Gray v. Bowles, 74 Mo. 419; 1 Black on Judgment, sec. 261.] The plaintiff did not proceed in the circuit court by bill in equity and ask to have the judgment set aside for fraud, nor did she attempt to set it aside for irregularity by motion or petition for review.” See also the cases cited in our paragraph one, supra.

There is no doubt that the State Board of Equalization was acting within its jurisdiction when it fixed values for bank stock in Jasper County, and its judgment can not be attacked in this collateral proceeding.

In State ex rel. v. Vaile, 122 Mo. l. c. 47, Black, P. J., said: “A board of equalization in performing its duties, acts judicially, and its orders cannot be impeached collaterally, save for want of jurisdiction or for fraud. [Black v. McGonigle, 103 Mo. 193, and cases cited; Black on Tax Titles (2 Ed.), sec. 141.] But it is a board of special and limited powers, and when it steps outside of its jurisdiction its acts are void.”

If attacked for want of jurisdiction, the fact must appear on the face of the record. So appearing, the judgment is void, and a void judgment may be attacked collaterally. But if the judgment is only voidable and not void it can only be attacked in a direct proceeding. This is hornbook law.

Judgments may be set aside for fraud, but the fraud must be such as entered into the very concoction of the judgment. But we need not discuss this, because a judgment cannot be attacked for fraud in a collateral proceeding. It must be by a direct bill in equity. It follows that the objections made by relator to all the oral evidence introduced to impeach the judgment of the State Board of Equalization should have been sustained, because such judgment cannot be thus impeached in this collateral proceeding. Wtith this evidence stricken from the record there is nothing left to either of these cases for the defendants. The members of the State Board of Equalization could not impeach their own judgment in this collateral proceeding. Nor can the judgment of the County Board of' Equalization be impeached in this collateral proceeding. This removes from the record all evidence having in view that purpose.

Under the law these hoards, both State and county (in this collateral proceeding), are presumed to have performed their duties under the law. This presumption is a finality in collateral proceedings. The face of the record does not disclose want of jurisdiction in the State Board of Equalization, and its judgment is not void. Its attack in this collateral proceeding cannot he sustained under the law. When we have stripped from the record in this case all the incompetent evidence (duly objected to below) there is absolutely nothing left to the defenses made by defendants. The many matters discussed need not he noted at all, because this is not a case wherein they could properly arise. The judgment nisi should he affirmed, and it is so ordered.

All concur except Woodson, J., not sitting.

On Motion to Modify Opinion and Judgment.

GRAVES, J.

Motions to modify our opinion and the judgments herein have been filed. Those motions should be sustained. As stated in the opinion these two actions are to recover unpaid balances due upon taxes for the five years next preceding the bringing of the actions. It would appear that the circuit court omitted to credit the payments of a portion of the taxes paid by the two hanks. Counsel for plaintiff admits the error, hut in our deep interest in the vital question in the case, we overlooked this matter. Counsel offers to remit from the judgments so as to make them correct. This will be permitted.

So that in the first case, the judgment will he cut down to $93.96, which includes ten per cent for the tax attorney’s fees. In the other case, the judgment will be cut to $96.36, which includes ten per cent for the tax attorney’s fees. ' ' ''

In the cases the. tax hills (five in each) show these amounts as the balance due, including the penalties and tax attorney’s fees. The opinion is hereby modified, as are also the judgments. In the first case, judgment is entered here for the sum of $93.96, and in the second case, judgment is entered here for the sum of $96.36.

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


author: WILLIAMS, J.

text:
    EMERY GRAVES and LOTTIE JOHNSON, Appellants, v. METROPOLITAN LIFE INSURANCE COMPANY.
    In Banc,
    July 7, 1919.
    1. SUIT ON LOST INSTRUMENT: Insurance Policy: Affidavit. The statutes requiring that in a suit founded upon a written instrument, if “the debt or damages claimed may be ascertained” therefrom, such instrument “shall be filed with the justice, and no-other statement or pleading shall be required,” and if such instrument shall be lost an affidavit stating such loss or destruction and setting forth the substance of the instrument, do not apply to a life insurance policy, for an insurance policy is not such an instrument, since it cannot be ascertained from its face the debt or damages due; and hence, it cannot be ruled that the justice fails to obtain jurisdiction of the subject-matter of an action for an amount alleged to be due on an insurance policy, on the sole ground that neither the .policy nor an affidavit that it was lost was filed with the justice.
    2. LIFE INSURANCE: Extended Policy: Failure to Give Notice of Insured’s Death: Bar to Recovery. Sections 6946 and 6948, Revised Statutes 1909, providing that, in case of extended life insurance, notice of the claim and proof of death must be submitted to the company within ninety days after insured’s death, must be read and construed together, and a failure to give notice and make proof of death within such time, absent waiver or estoppel or other matter of avoidance, defeats recovery. A claim under the policy is not, by said statutes, strictly speaking, defeated by reason of forfeiture, but because failure to give notice and make proof of death constitutes a failure to perform a statutory requirement essential to the creation of a valid claim against the company.
    Appeal from St. Louis City Circuit. Court. — Hon. William T. Jones, Judge.

      Affirmed.

      James J. O’Donohoe for appellant.
    (1) The policy in suit is non-negotiable and hence Section 7414 is inapplicable. The pertinent sections are Secs. 7412, 7416, R. S. 1909. Neither the filing of the instrument nor an affidavit in case of its loss or destruction is essential to jurisdiction over the subject-matter. Watkins v. American Yoemen, 188 Mo. App. 626; Sanders v. Selleck, 165 Mo. App. 392; Mansur v. Linney, 162 Mo. App. 260; Keyes & Watkins Livery Co. v. Freber, 102 Mo. App. 315; Bank v. Clifton, 263 Mo. 211; State ex rel. v. Smith, 104 Mo. 422; Dowdy v. Wamble, 119 Mo. 284; Railway v. Lowder, 138 Mo. 536; O’Brien v. People, 216>111. 354. (2) A policy of insurance is not a debt, but only primary evidence of a debt, and its loss or destruction does not change the obligations of the parties thereto. Dannehauser v. Wallenstein, 169 N. Y. 199; McDonnell v. .Ins. Co., 85 Ala. 412. And being non-negotiable when reduced to judgment the policy is merged in the judgment and put out of existence. The judgment becomes the' sole and only debt and hence section 7414 is in such cases inapplicable and section 7416 is applicable. Barber v. Baker, 70 Mo. App. 680. (3) “Courts of equity do not favor forfeitures, although life insurance companies do.” Belt v. Ins. Co., 12 Mo. App. 101. Accordingly, since there are no words of forfeiture in the statutes for failure to make claim or to supply proof of death within ninety days from the decease of the insured, none should be supplied by construction. Dezell v. Casualty Co., 176 Mo. 253. (4) Time for making claim or furnishing proofs of death is not of the essence of the statute. Montgomery v. Ins. Co., 1 Bush. (Ky.) 51; Insurance Co. v. Jarboe, 102 Ky. 80; Insurance Co. v. Patterson, 22 Ky. Law Rep. 1282; Insurance Co. v. Miles, 23 Ky. Law Rep. 1705. Statutes, like policy stipulations, can be waived. Liebing v. Ins. Co., 269 Mo. 509; Shearlock v. Ins. Co., 193 Mo. App. 430. The policy stipulates that “if this policy is or shall become void, all premiums paid shall be forfeited to the company.” It stipulates, too, that “if any premium shall not be paid when due, this policy shall be void.” These stipulations dispensed with notice and proof of death. Mun v. Ins. Co., 181 S. W. (Mo. App.) 606; Dodge v. Ins. Co., 189 S. W. (Mo. App.) 609.

      Nathan Frank and Louis B. Sher for respondent.
    (1) The unqualified denial of liability after the time for proofs has expired, is no waiver of the failure to furnish them. Boren v. Brotherhood of Railroad Trainmen, 145 Mo. App. 136; Cohn v. Insurance Co., 62 Mo. App. 275; Bolán v. Association, 58 Mo. App. 531; Gale v. Insurance Co., 33 Mo. App. 672; Erwin v. Insurance Co., 24 Mo. App. 151. (2) Appellants show no valid reason why this court should refuse to follow the decision of the Kansas City Court of Appeals in the case of Chandler v. John Hancock Ins. Co., 180 Mo. App. 394. The contention below was that there was a failure to comply with the terms and provisions of Section 6948, requiring the submission of claim and making and filing proofs of death within ninety days after the death of the insured. (3) This suit being upon a lost instrument filed in the justice court, it was incumbent upon plaintiffs to verify the petition in accordance with Section 7414. The cases referred to by appellants have reference to suits filed in the circuit court. Sections 7413 and 7414 are sections that govern the filing of suits on instruments in writing in the justice court and do not refer solely to suits upon promissory notes or negotiable instruments, as is contended by the appellants. Hudson v. Wright, 204 Mo. 412.
   WILLIAMS, J.

This action, originally instituted before a justice of the peace in the City of St. Louis, seeks to recover the sum of $160, and interest thereon, upon a policy of life insurance issued by defendant upon the life of one Ollie M. Graves.

Plaintiff recovered judgment in the justice court and defendant appealed fo the circuit court. Upon trial in the circuit court judgment was rendered for defendant and plaintiffs duly appealed to the St. Louis Court of Appeals, which court (See 179 S. W. 947), reversed the judgment of the circuit court with directions, but, deeming its decision in conflict with certain decisions of the Kansas City Court of Appeals, certified the cause to this court.

The case was first heard and written in Division One, but upon a dissent the cause was transferred to and heard by Court in Banc. After the opinion was written in Division One, and before the cause was submitted In Banc, appellant filed a supplemental abstract of the record, setting forth a copy of the original statement which was filed in the justice court. This statement alleged that the insurance policy was lost. The statement was not verified, neither was there any affidavit filed with the justice which undertook to comply with Section 7414, Revised Statutes 1909.

The following facts are quoted from' the Divisional opinion:

“The beneficiary died on September 5, 1906, and the insured on the 16th day of March, 1907. The insured was never married. The plaintiffs are the next of kin and are the sole surviving heirs of the insured and beneficiary. Both died intestate and left no estate. There was no indebtedness against said policy. The insured reserved the right to change the beneficiary.
“It was admitted at the trial that said policy, was dated October 20, 1902, and that the premiums .were paid until the 22nd day of October, 1906. It was admitted that by reason of the payment of these premiums the policy acquired a net value, three-fourths of which, when applied as a net single premium for temporary insurance, carried the policy to the death of the. insured, figured according to the non-forfeiture statute of the State of Missouri.
“The insured died less than five months after default. R. J. Douglass, who wrote the application, and F. M. McDonald, collected part of the premiums thereon. The plaintiffs testified that soon after the death of-the insured they notified agents Douglass and McDonald thereof, and made claim under said policy, but McDonald testified that he had quit the employ of defendant before the death of insured. The testimony of McDonald in this respect was conceded to be true.
“At the conclusion of the trial the plaintiffs asked a peremptory instruction, and a declaration of law in respect to their damages, both of which were refused and exceptions saved. Defendant likewise asked instructions, which were refused and exceptions duly saved. The case was taken under advisement by the court, and on May 26, 1913, judgment was entered in favor of defendant and against plaintiffs. The court, at the time óf the rendition of said judgment, filed the following memorandum:
“ ‘It seems clear from the evidence that plaintiffs in the case failed to furnish any proofs of the death of the deceased, as required by the policy, and by Section 6948, Revised Statutes 1909, and failed to show any acts on the part of the defendant that can be construed as a waiver of proofs. The testimony, satisfies me that at the time of the conversations, or alleged conversations, of plaintiffs with Douglass and McDonald, neither of them was connected with defendant. This suit was not instituted until four years after death of deceased, which indicates that plaintiffs must have considered at the time of suit that they had no claim. For this reason judgment will go for defendant.’ ”

I. Respondent insists that the justice court (and* hence the circuit and appellate courts) acquired no jurisdiction over the subject-matter of this case, because the appellant failed to file .an affidavit before the justice as required by the statute when a suit is in-before a justice upon certain lost instruments. This' was the point upon which the decision turned in the Court of Appeals.

Section 7413, Revised Statutes 1909, among other things, provides: “When the suit is founded upon any instrument of writing purporting to have been executed by the defendant, and the debt or damages claimed may be ascertained by such instrument, the same shall be filed with the justice, and no other statement or pleading shall be required.”

Section 7414, Revised Statutes 1909, provides:

“If such instrument be alleged to be lost or destroyed, it shall be sufficient for the. plaintiff to file with the justice the affidavit of himself, or some other credible person, stating such loss or destruction, and setting forth the substance of such instrument. ’ ’

If the life insurance policy upon which this suit is founded is such an instrument as is embraced within the meaning of the foregoing statutes, then under the former rulings of this court, the plaintiff having failed to file the required affidavit with the justice, jurisdiction of the subject-matter was not acquired. [Hudson v. Wright, 204 Mo. 412, l. c. 431.]

But is the insurance policy such an instrument? With all due deference to the learned Court of Appeals we feel constrained to rule that it is not such an instrument. Under the statute the instrument of writing must purport to have been executed by the defendant and must be a writing by which the debt or damages claimed may be ascertained.

In the case of Hudson v. Wright, supra, the instrument involved was a negotiable promissory note and the statute was quite properly held to apply, because the debt could be easily ascertained from the face of the instrument itself. But can as much be said for an insurance policy? Can a debt upon an insurance policy be ascertained by a mere inspection of the face of the policy? We think not. It would at least be impossible to ascertain tbe debt due upon this policy unless it were known that the insured’s death had occurred. This fact could not be found by an inspection of the policy.

We are of the opinion that Ellison, J., announced the correct rule, here applicable, in his separate concurring opinion in the case of Mansur v. Linney, 162 Mo. App. 260, 1. c. 268, wherein he said: “This suit, manifestly, is not founded upon such an instrument of writing, mentioned in the latter section, whereby a debt or damages can be ascertained by the instrument. The written contract in this case does not ascertain any debt. It is not like a bond or note; it is merely an employment of service which may never be performed, or which may be performed in various ways. The statute contemplates such character of written instrument as need not require any pleading or explanatory statement in order to make a cause of action, for it says that ‘no other statement or pleading shall be required.’ What would have been said of this case if there had been filed with the justice nothing but the. contract? Would that have been any indication that plaintiff had sold the land, or that, as here, while not selling it, but had done all that was necessary to give him a cause of action for his commission, or that a cause of action had by any means accrued?”

Therefore we conclude that the court acquired jurisdiction of the subject-matter of this case.

II. Appellant’s right to a recovery, if at all, must arise by virtue of Sections 6946 and 6948, Revised Statutes 1909, because it appears from the evidence that but for the saving provisions of the above statutes the policy would have become forfeited by reason failure to pay premiums. It also stands conceded that by reason of Section 6946, supra, the term of extended insurance was sufficient to cover the date of the death.

Section 6948, supra, among other things provides:

“If the death of the insured occur within the term of temporary insurance covered by the value of the policy as determined in Section 6946, and if no condition of the insurance other than the payment of premiums shall have been violated by the insured, the company shall be bound to pay the amount of the policy, the same as if there had been no default in the payment of premium, anything in the policy to the contrary notwithstanding: Provided, however, that notice of the claim and proof of the death shall be submitted to the company in the same manner as- provided by the terms of the policy within ninety days after the decease of the insured.”

The trial court found that appellants failed to give notice of the claim and make proof of the death within ninety days as required by the above statute, and that there was no waiver by the respondent of this requirement. This being an action at law, and there being substantial evidence to support the above finding, the same is conclusive here. (In fact as we read the record it does not appear therefrom that the company had notice of this claim until this suit was instituted, which was more than four years after the death.)

The legal question presented is, Does the failure to give notice and make proof of death within the time provided by the above statute (absent waiver or other matter of avoidance), defeat a recovery?

We have reached the conclusion that this question must be answered in the affirmative. By the terms of the statute it clearly appears that the notice and making proof of death within ninety days is made a condition precedent to a right of recovery.

In the case of Liebing v. Insurance Company, 269 Mo. 509, l. c. 520, it was held that the above-mentioned proviso was enacted for the benefit of the insurer and that the insurer could waive a compliance therewith. It would necessarily follow as a corollary to the above holding that if the provision were not waived (or, we might add, avoided in some other, manner, as for example, by estoppel), a failure to comply therewith would operate to prevent a recovery. If this were not so, then it was entirely unnecessary in that ease to base the right to a recovery on the existence of such a waiver.

The Kansas City Court of Appeals in the case of Chandler v. Insurance Company, 180 Mo. App. 394, held' that a recovery upon extended insurance under the provision of Section 6946, supra, could not be had (absent a waiver by the insurer), where the beneficiaries failed to give the notice or make proof of death as required under Section 6948, supra.

This exact feature of the statute has not been construed by this court, and we find no decision from other States upon similar statutes which throw any light upon the question.

We are of the opinion that the conclusion reached by the Kansas City Court of Appeals on this question in the Chandler case is correct.

The line of cases cited and relied upon by appellant, of which Dezell v. Casualty Co., 176 Mo. 253, is a fair type, are, we think, not in point here.

Appellants’ present right of recovery depends upon the language of the above mentioned statutes.

In this behalf Sections 6946 and 6948, supra, must be read and construed together. When this is done it will be seen that plaintiffs’ claim in the present action is not defeated, strickly speaking, by reason of forfeiture, but is defeated because plaintiffs failed to perform the statutory requirements essential to the very creation of a valid claim against the respondent.

From the foregoing it follows that the judgment of the circuit court should be affirmed.

It is so ordered.

Walker, Faris, Blair and Graves, JJ-, concur; Bond, C. J., not sitting; Woodson, J., absent.