text:
    In re Proceedings to Open Sixth Street; KANSAS CITY v. MAX MORRIS et al., Appellants.
    In Banc,
    December 19, 1918.
    1. INSTRUCTION: Expert Testimony: To Disregard Testimony. An instruction, in a street condemnation case, ■which tells the jury that “in estimating the value and damages to property, they may act entirely upon their own knowledge and judgment and may disregard the testimony of all or any of the witnesses,” is erroneous. While the only effect of expert testimony is informatory and advisory it is competent for that purpose, and cannot be disregarded until first considered and weighed, and its credibility tested by the jury’s own personal knowledge and experience and a comparison of all other evidence of a contrary import.
    2. -: -: -: Harmless: Cured by Inconsistent Instructions. The rule warranting the curing of a fault in one instruction by language contained in another does not apply when they , are inconsistent and both are given on the same side. The error in an instruction which tells the jury that they may estimate the value and damages to property “entirely” upon their own view and may “disregard the testimony of all or any of the witnesses” is not cured by another which tells them that they can only use their knowledge and judgment in connection with all the evidence in the case, when both are given on behalf of parties whose interests are hostile to those of appellants and there is evidence tending to show a substantially larger amount of damages caused by the appropriation of appellants’ property than was awarded by the jury.

      3. DAMAGES: Street Condemnation: Removal of Goods: Loss of Business. The owner is not entitled to damages for the removal of a stock of goods from the land condemned for street purposes to a new location, nor for depreciation in value caused by such removal and reinstallment, nor for injury to his business on account of interruption and cessation during removal. [Following St. Louis v. Railroad, 266 Mo. 1. e. 701-707.]
    4. -: Evidence: Removal of Goods. Testimony of a defendant in a street condemnation proceeding as to the amount of damages he suffered from an interruption and cessation in his business and the removal of his stock of goods made necessary by the widening of the street, is not competent, because he is not entitled to damages for those things.
    Appeal from. Jackson Circuit Court. — Hon. William 0. Thomas, Judge.
    Reversed and remanded.

      Robert E. Rooney for appellant, Max Morris.
    (1) The court erred in giving instruction G-35. City of Kansas v. Hill, 80 Mb. 536; City of Kansas v. Baird, 98- Mo. 218; Hull v. City of St. Louis, 138 Mo. 618. (2) The award of the jury to this appellant is grossly inadequate, confiscatory and sweeps away a material part of his life’s earnings. Met. St. Ry. Co. v. Walsh, 197 Mo. 420; In re Fordham Road, 74 N. J. App. 343.

      Frank F. Brumback for appellant, John I. Glover.
    (1) The court erred in refusing to give the instruction asked by this appellant to allow this appellant his proper measure of damages for his land taken, to his manifest injury, because it appears from the evidence that if the proper measure of damages had been applied this appellant would have recovered as the value of his property taken much more than the amount allowed by the jury. Charter of Kansas City, sec. 3, art. 6; Charter, sec. 7, art. 7; Jefferson City v. Wells, 263 Mo. 231.

      Cooper, Neel S Wright, J. W. Dma for appellants, T. M. James & Sons China Co.
    (1) The court erred in giving instruction 0-38. City of Kansas v. Hill, 80 Mo. 536; City of Kansas v. Baird, 98 Mo. 218; Rosentreter v. Brady, 63 Mo. App. 403; Metropolitan Street Ry. Có. v. Walsh, 197 Mo. 421. (2) The court erred in giving instruction 0-35. Chicago, etc., Ry. Co. v. McGrew, 104 Mo. 291; Kansas City, etc. Ry. Co. v. Dawley, 50 Mo. App. 487. (3) The verdict should he set aside because there is no award in favor of the owner of Tract 18, to-wit, T. M. James & Sons China Company. Schmeltzer v. Furniture' Co., 252 Mo. 18; Adams v. Gassom, 228 Mo. 577; McCord, Admr. v. McCord, 77 Mo. 166; R. S. 1909, sec. 2097. (4) The award of the jury to this appellant is grossly inadequate, confiscatory and unreasonably low, for which reasons a new trial should be granted. Grand Rapids Co. v. Weiden, 38 N. W. (Mich.) 295; Adkins v. Smith County Auditor, 64 N. W. (Ia.) 761; Lenhart v. State, 77 N. Y. Supp. 398; In re Fordham Railroad, 77 N. Y. Supp. 567; In re Met. El. Ry. Co., 27 N. Y. Supp. 758; Metropolitan St. Ry. Co. v. Walsh, 197 Mo. 420. (5) The court erred in excluding the testimony of Mr. J. C. James: (a) As to the value of the use of the building during the period necessary for interruption by reason of having to move; (b) as to the cost of moving the business, and (e) as to the necessary loss of business by reason of having to move. Constitution of Missouri, art. 2, sees. 21, 30; U. S. Constitution, 5th and 14th Amendments; Chicago Ry. Co. v. McGrew, 104 Mo. 282; St. Louis v. Abeln, 170 Mo. 326; Bridge Co. v. Schaubacher, 57 Mo. 582; St. Louis v. Brown, 155 Mo. 545; Railroad v. Brick Co., 198 Mo. 698; Railroad v. Second Street Imp. Co., 256 Mo. 386.

      E. M. Harber, City Counselor, J. G. Petherbridge, Assistant City Counselor, for respondent, Kansas City.
    (1) The instructions complained of were not erroneous. Kansas City v. Butterfield, 89 Mo. 646; Res■tetsky y. Railroad,. 106 Mo. App. 386; St. Louis v. Ran-ken, 95 Mo. 189. All of the instructions should he taken and considered as a whole, and the verdict sustained, if possible. Pounds v. Coburn, 210 Mo. 115; Brod v. Transit Co., 115 Mo. App. 214; Rigsby v. Oil Co., 130 Mo. App. 137; Clack v. Supply Co., 72 Mo. App. 506; Senn v. Southern Ry. Co., Í35 Mo. 512; Dougherty v. Mo. Pac. Ry. Co., 97 Mo. 647. If the qualification of the instruction complained of appears elsewhere in a form fairly bringing it to the attention of the jury as a modification of the other, the judgment will not, on that account, be reversed. Schroeder v. Michel, 98 Mo. 48. Erroneous instructions may be corrected by supplying defieiences or omissions, if the appellate court is satisfied that the complaining party was not prejudiced thereby. Chambers v. Chester, 172 Mo. 461; Grace v. St. Louis R. R. Co., 156 Mo. 295 ; Gamache v. Piquienot, 17 Mo. 310; Holladay-Klotz Land & Lumber Co. v. Markham, 96 Mo. App. 51; Havej v. Schwyhart, 48 Mo. App. 50. An erroneous instruction is harmless where the verdict is right. State ex rel. v. Stone, 111 Mo. App. 364; Carr v. Railway, 195 Mo. 214; Petersen v. Transit Co., 199 Mo. 331; Coleman v. Reynolds, 207 Mo. 463. (2) There was no error in giving Instruction G-35. See Instruction G-16’ given at the request of Mr. James, covering his property. The two are in perfect harmony. Instruction G-35 was correct and has been apporved by this court. St. • Louis Ry. Co. v. Knapp-Stout Co., 160 Mo. 408; St, Louis v. Buggy Co., 266 Mo. 704. (3) The award to appellants for their lands was all, and perhaps much more, than they could have gotten at a private sale. In fact, property in this vicinity has been declining in value for fifteen years, as shown by the evidence, and there is no market for it. (4) The evidence as to the value of the property taken or damaged was only advisory to the jury. The jury viewed and inspected the property and were in a better position than this court, or any witness, to determine the just compensation to be paid for it. It cannot be said that the verdict is contrary to their judgment after hearing the evidence and viewing the premises taken. (5) The court correctly instructed the jury as to the measure of damages. Ry. Co. v. Real Estate Co., 204 Mo. 565.

      Sebree, Conrad S Sebree for respondent, J. Fred Butler.
    (1) The court did not err in the giving of instruction Gr-38. (1) When said instruction is read as a whole the jury is clearly directed that they may act upon their own knowledge and judgment in connection with the evidence, and while the testimony of witnesses is advisory only, it is not binding or conclusive upon the jury, and they may, if the character of testimony warrants, disregard the same. Kansas City Charter, sec. 3, art. 6; St. Louis & St. Joe Ry. Co. v. Richardson, 45 Mo. 468; Hull v. City of St. Louis, 138 Mo, 618. (2) The instructions in the case when read as a whole show that the jury was not misled by any uncertainty in any individual instruction. Liese v. Meyer, 143 Mo. 560; Dutcher v. Railroad, 241 Mo. 172; Davidson v. Railroad, 164 Mo. App. 720. (3) Issues . not affecting substantial rights should be disregarded. R. S. 1909, sec. 1850. (2) Instruction U-35 properly declares the law. Neither the peculiar value of property to the owners or claimants, nor the city’s desire for the same determines the value of the property. Such is not the proper measure of damage. (3) The award of the jury as to the T. M. James & Sons China Company is not grossly inadequate and confiscatory, but reasonable and proper, and it is without right in law to complain thereof. Perkins v. State,. 113 N. Y. 660. The jury in this case was composed of freeholders, who, under the charter viewed and inspected the premises. Therefore, adjudications as to the adequacy of verdicts assessed by common-law juries are not applicable. The rule of law governing a freehold jury is that the verdict as to assessment of damages must not be disturbed unless the court is clearly satisfied that the jury erred in the principle upon which they have made their appraisal. St. Louis v. Lanigan, 97 Mo. 178; Ry. Co. v. Richardson, 45 Mo. 466; St. Louis v. Calhoun, 222 Mo. 55, 56; In re Metropolitan Elevated Ry. Co., 27 N. Y. S. 756. (4) The court did not err in excluding testimony of Tract 18 belonging to T. M. James & Sons China Company as to the value of the use of the buildings during the period of necessary interruption by reason of having to move, as to the cost of moving the business, and as to the necessary loss of business by reason of having to move. Railroad v. Schweitzer, 173 Mo. App. 657; St. Louis v. Railroad, 266 Mo. 694.

      John G. Park for respondents, A. B. C. Fireproof Warehouse Co. et al.
    (1) The only disputes were upon matters of opinion as to damages and values. Instructions will be interpreted in the light of the issues. Tranbarger v. Railroad, 250 Mo. 59; Riley v. Independence, 258 Mo. 684. Instructions G--1 and Gr-38 must be taken together. Harrington v. Sedalia, 98 Mo. 589; Wellman v. St. Ry. Co., 219 Mo. 151. It will be assumed that the jury did read them together. Patterson v. Evans, 254 Mo. 304; Hoover v. Mining Co., 160 Mo. App. 331. No necessity for repeating in Instruction Gr-38 that which had been stated in G-l. Benton v. St. Louis, 248 Mo. 112; Strickler v. Printing Co., 249 Mo. 620. The opinions of the witnesses were merely advisory and not binding on the jury. Cosgrove v. Leonard, 134 Mo. 419; Taussig v. Railway, 166 Mo. 33; .MacDonald v. Railroad, 219 Mo. 481; Hull v. St. Louis, 138 Mo. 628; Hoyberg v. Henske, 153 Mo. 76; State v. Stapp, 246 Mo. 338; Johnson v. Kahn, 97 Mo. App. 631; Smith v. Tel. Co., 113 Mo. App. 444; City of Kansas v. Street, 36 Mo. App. 668; Com. Co. v. Aaron, 145 Mo. App. 318; Poumeroule v. Cable Co., 167 Mo. App. 538; Patterson v. Traction Co., 178 Mo. App. 259; Shipman v. Ins. Co., 187 Mo. App. 406. (2) Instruction G-35 is in the exact form prescribed by controlling decision of this court. St. L., K. & N. W. Ry. v. Knapp-Stout & Co., 160 Mo. 408; St. Louis v. Railroad, 266 Mo. 701, 704. (3) Errors, if any, were harmless. R. S. 1909, secs. 1850, 2082. The award was sufficient. (4) Loss of use of building, cost of removal and loss of building properly excluded. St. L., K. & N. W. Ry. Co. v. Knapp-Stout & Co., 160 Mo. 412; St. Louis v. Railway, 266 Mo. 701. (5) Neither illegal nor unconstitutional to instruct jury that opinions of expert witnesses are merely advisory. Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028.

      Ingraham, Guthrie & Durham for respondents, George W. Mageath, Thos. J. Pendergast, The Wiel Co., M. L. Turner and Smith Baker Estate.
    (1) There was no error in giving Instruction No. G--38. Said instruction did not mislead the jury as to their duty respecting the evidence in the case, (a) This instruction properly stated to the jury that the testimony of witnesses as to values was advisory, that is to say, for the purpose of giving advice to the jury. The language of the instruction is in effect a direction to the jury to weigh and consider the evidence and it is also properly stated therein that the jury are not bound by the evidence. Kansas City Charter, see. 3, art. 6; St. Louis & St- Joe Railway Co. v. Richardson, 45 Mo. 468; Kansas City v. Butterfield, 89 Mo. 646; Restetsky v. Railroad, 106 Mo. App. 386; Hull v. St. Louis, 138 Mo. 618. (b) The jury of freeholders who had sat for six weeks listening to the testimony admitted in evidence by the court, had too much intelligence and too much regard for the purpose and function of the trial to misconstrue this' instruction to be as appellants contend, a direction or permission not to consider such testimony at all, and thereby treat the trial as useless formality, (c) If there is any doubt about the meaning of said Instruction G-38 standing alone, all uncertainty is removed when same is read in connection with Instructions G-l and G-50. Of course, all instructions should be read together in passing on this question. St. Louis v. Rankin,. 95 Mo. 189. Instruction G-l clearly directs the jury to consider “all evidence in the case,” and Instruction G-50 does the same, and in addition thereto, tells the jury, they are not bound to accept any testimony “against their own judgment and conviction;” that is to say, they are not bound to accept such testimony as they may consider unreasonable. 2) The rule as expressed in Instruction G-35 has been approved by the Supreme Court. St. L. etc., Ry. Co. v. Knapp, 160 Mo. 408; St- Louis v. Ry. Co., 266 Mo. 704. The award to Appellant James was not inadequate and confiscatory. No claim has been or could be made that there was any discrimination by the jury as between Mr. James and other property owners. The jury deliberated three and one-half months after hearing the testimony before reaching a verdict. All were treated alike and the owners of 26 out of 29 tracts concluded to accept the verdict — a circumstance very persuasive that the verdict is not “grossly inadequate, confiscatory, oppressive and unreasonably low.” The finding of the jury is conclusive. St. Louis v. Langon, 97 Mo. 178; Ry. Co. v. Richardson, 45 Mo. 466; St. Louis v. Calhoun, 222 Mo. 56. Evidence of loss due to interruption of business and evidence of cost of moving is not admissible under the decisions in this State. St. Louis Ry. Co. v. Buggy Co., 266 Mo. 694; St. Louis Ry. Co. v. Knapp-Stout Co., 160 Mo. 396.
   BOND, C. J.

In this appeal from a judgment in street condemnation proceedings, all of the appellants and their friends seem to have favored us with separate briefs, similar in quantity to the pile of documents submitted to a famous jurist who decided the case without reading any of them. However, so learned was the defense made by the legal pundit of his “aleatory way of deciding law debates,” that the Rabelaisian satirist made a plea for his pardon, which it is not certain was allowed. [Rabelais, vol. 3, p. 277, Wallis Ed.] Warned by the meticulosity of present-day critics of the judiciary, as well as by the pitfall of the noted jurist, we have concluded it might not be altogether proper to put the briefs of the two parties and their collaborators in separate piles and “cast dies” for the result. We shall, therefore, eschew the ancient precedent (possibly valuable for quickness of decision in medieval times) and do what we can to extract the quintessence of the contentions from the voluminous briefs and, mayhap, in that way reach the very right of the matter presented by this appeal.

This is a proceeding begun by Kansas City, Missouri, in pursuance of its charter and an authorizing ordinance, to ascertain damages and benefits for opening, widening and establishing Sixth Street from the east line of Broadway to the west line of Grand Avenue and thence one block south to Admiral Boulevard. The machinery of the circuit court was properly set in motion and the issues were tried by a jury of six men. Before the origination of this proceeding, the people of Kansas City had voted $150,000 of bonds to cover the assessments against the city for damages to property that might be taken. Tripartite interests were represented at the trial; the owners of the land condemned seeking adequate compensation, the owners of the land benefitted seeking a just assessment of the charges and benefits, and the city, the protagonist of the improvement. After a prolonged trial and the adduction of evidence on the part of the various parties interested in support of their respective claims, instructions were given and refused upon requests by the respective parties and, on July 17, 1917, a verdict was rendered upon all the issues. Thereafter, on October 4, 1917, the court permitted the jury, upon additional instructions, to amend their verdict, and ordered the refiling of all motions for new trial and in arrest and subsequently overruled the same. The effect of this amended verdict simply increased the assessment against the city; it did not change the finding of the jury in other respects.

Under the verdict $614,880.50 were allowed as damages for lands and property taken, of which amount there was assessed against the city the sum of $425,550, and the remainder was assessed against owners of property in the benefit district. From this judgment F. M. James & Sons China Company, Max Morris and John I. Glover duly appealed and assigned for error: the giving and refusal of instructions; the imperfec tion of the verdict; that the award of the jury of dam' ages was inadequate and confiscatory; the exclusion of the testimony of J. C. James; that the court erred in allowing an amendment of the verdict of the jury, and that the verdict, as to appellant, was not sustained by the evidence on the trial.

I It is insisted that the jury was erroneously restricted in the consideration of the testimony adduced, by the terms of the following instruction:

“ (G-38) The court instructs the jury that they are the exclusive judges of the facts, that in estimating the value aid damage of property, if any, they may act entirely upon their own knowledge anc^ judgment and may disregard the testimony of all or any of the witnesses. The testimony of witnesses is advisory only and the testimony of none of the witnesses is binding or conclusive upon the jury.”

It is urged on behalf of appellants that the foregoing instruction, in terms telling the jury that “they may act entirely upon their own knowledge and judgment and may disregard the testimony of all or any of the witnesses,” was necessarily prejudicial to them in that the jury were warranted thereunder in excluding from their view any consideration of the relevant testimony of expert witnesses introduced by appellants which tended to show that the property owned by them was damaged in a substantially larger sum than the amount awarded by the jury.

That expert testimony or opinion evidence is never conclusive upon the triers of the fact is a proposition supported by all the text-writers and is the settled law of this State. The only effect of such evidence is informatory and advisory, but it is as competent and relevant for that purpose, and to that extent, as any other evidence given by a competent witness as to a matter of fact lying within his own knowledge; and while the jury may disregard the testimony of experts, if disproven by their own experience and knowledge or otherwise, they cannot do so without -first considering and weighing it and testing its credibility by their own knowledge and experience and by comparison with all other evidence of a contrary import. It would be quite illogical to say that the jury are compelled by law to listen to expert or opinion evidence and then, at the end of the trial, without any consideration or weighing of the tesimony thus adduced, render their judgment solely in accordance with their own personal views of the matter in controversy. The fault with the instruction under review is, that it failed to state, as a condition precedent to the right of the jury to “disregard the testimony of all or any of the witnesses,” that they could only exclude such testimony from their view after due consideration and giving it that weight which it was entitled to have, according to their own “knowledge and judgment” and taken in connection with the other testimony in the case. In other words, the correct rule is that the jury must first consider and weigh such testimony as an integral part of all the evidence bearing on the issues on trial and as compared with theirs own knowledge on the subject from viewing the premises, and, if after thus regarding it, they are not satisfied- of its truth, then they may disregard it. This has been repeatedly decided by this court. [Kansas City v. Hill, 80 Mo. l. c. 536; Hull v. St. Louis, 138 Mo. l. c. 627; Kansas City v. Baird, 98 Mo. l. c. 218; Kansas City v. Butterfield, 89 Mo. 646; Met. St. Ry. Co. v. Walsh, 197 Mo. l. c. 421.] The above instruction was given at the request of the owners of property in the benefit district, who were interested in minimizing the amount to be found by the jury as damages for the taking of property of appellants. It was prejudicial because the record shows that appellants gave evidence tending to show a substantially larger ' amount of damages caused by the appropriation of their property than was allowed by the juiy. The instruction under review told the jury that, without any previous consideration whatever, they might discard all such evidence and render a verdict solely upon the initiative of “their own knowledge and judgment.” We conclude that the instruction misstated the law to the possible prejudice of appellants and, therefore, unless the error therein was cured, the judgment as to appellants must be reversed and the cause remanded.

It is argued, however, on the part of the city and the owners of property in the benefit district,. that the above instruction was not inconsistent with instructions G-l given for the city, and G-50 given on behalf of the owners of property in the benefit district.

In G-l the jury were told, in substance, that their verdict should be rested upon consideration of all the evidence in the case in connection with their own judgment. In G-50 they were simply told they were the judges of the credibility of witnesses and not bound by any testimony as to damages against their own judgment and conviction. The three instructions were given on behalf of the parties having interests hostile to appellants in this case. Those which respondent relied on as curing the error of the first are not complementary and supplementary instructions and hence curative of another which might have been wanting in some element supplied by the latter. But they are directly inconsistent with instruction G-38 given on-the same side of the case. When that is the case, the rule warranting the curing of a fault in one instruction by language contained in another, has no application whatever. In the case at bar the two latter instructions did not undertake in any way to amend, complete or supplement omissions in the first, but bluntly stated a contradictory rule for the guidance of the jury. The law is established in this State that instructions for a respondent, which are inconsistent, entitle an appellant who has saved an exception to them, to a reversal of the case if his interest would have been prejudiced had the jury followed the one rather than the other. For it can never be known, without the art of divination, not enjoyed bv appellate courts, which of the two inconsistent or contradictory instructions the jury allowed in making up their verdict. The law on this subject is thus stated:

“The rule, reading together all the instructions given in a case, warrants the supplementing of an imperfect by a perfect instruction; or, in other words, the curing of omissions in one instruction by a complete and correct statement in another one; but it does not go to the extent of holding that an instruction given for respondent which is radically wrong — that is, perverts the law or prejudges the facts — can be cured by another on behalf of the same party, which is free from the vice of the former. Such repugnant directions afford no guide to the jury, nor can it be presumed that they followed one rather than the other.” [Tawney v. United Rys., 262 Mo. l. c. 609.]

See also Linn v. Massillon Bridge Co., 78 Mo. App. l. c, 118, and cases cited; Pyburn v, Kansas City, 166 Mo. App. l. c. 152, and cases cited; Flynn v. Union Bridge Co., 42 Mo. App. l. c. 537, and cases cited.

The antagonism between the instruction quoted above and the other two on which respondent relies to cure the vice of the first, is this: by the first instruction (G-38) the jury were distinctly and explicitly told that in making up their verdict on the pivotal point of the value and damages to property — the sharp question in issue between the three parties to this litigation — they might base their estimate “entirely” upon their own view and might “disregard the testimony of all or any of the witnesses” — a clearer authority to the jury to evolve a verdict from the solitude of their own consciousness could not have been expressed in terms. On the other hand the two instructions given on behalf of respondents (the city and the property owners in the district) told the jury, in effect, that they could only use their own knowledge and judgment in connection %oith all the evidence in the case. (Italics ours). This is a correct statement of the law, but it was diametrically opposed to the statement contained in instruction G-38; for in that instruction the jury was pointed, as the sole source of a proper verdict, to the suggestions of their own intelligence, without any regard whatever to the testimony of all or any of the witnesses.

Our conclusion is that for the error in giving instruction G-38 in contradiction of the correct rule stated in the other two instructions for the same party, the judgment in this case must be reversed and the cause remanded.

II. As this cause must be retried, it is proper to rule on the instructions of the court on the measure of damages.

The instructions bearing on the measure of damages, complained of by appellants, seem to be in strict accord with the rulings of this court. [St. Louis v. Railroad, 266 Mo. l. c. 701-707, and cases cited; St. Louis Ry. v. Knapp-Stout & Company, 160 Mo. l. c. 412, and cases cited; Railroad v. Real Estate Co., 204 Mo. l. c. 575, and cases cited.]

The question received careful and discriminating consideration by Paris, J., in the case first cited above (266 Mo. 701), -which dealt seriatim with the three contentions of appellant in this case, i. e. (a) where damages -were allowable for the removal of a stock of goods from the land condemned to a new location, (b) for depreciation in value caused by such removal and reinstallment, and (c) for injury to the business of respondent on account of interruption and cessation during removal. Judge Paris held that none of these was embraced in the just compensation guaranteed in such cases by the Constitution, basing his conclusion upon the settled law of this State, the authority of standard text-writers and the adjudged cases elsewhere (with possibly one exception), concluding his review in the following terms:

“We therefore hold, in consonance with the great weight of authority everywhere, that respondent was not entitled to recover for loss of profits in its business during the removal of its stock of goods; nor for the expense of the removal of its stock of goods and personal property, as contradistinguished from fixtures, from its old location which was condemned, to a new location; nor for the depreciation in value of such personal property and stock of goods, caused by such removal and re-installation.” [St. Louis v. Railroad, 266 Mo. l. c. 707.]

Under the doctrine thus announced, the trial court did not err in its instructions bearing on the measure of damages, nor did it err in excluding the testimony of Mr. James as to the damage suffered by the cessation and interruption of his business and the removal of his stock in trade.

The other errors assigned by the learned counsel for appellant need not be discussed, since they relate merely to procedural matters and are not likely to arise on a retrial of tbe cause.

Eor the foregoing reasons the judgment against appellants is reversed and the cause remanded for further proceedings in conformity with this opinion. Tt is so ordered.

Walker, Faris .and Williams, JJ., concur; Wood-son, J., concurs in result; Blair and Graves, JJ., dissent.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    THE STATE ex rel. CECILE S. NOLEN v. GEORGE E. HACKMANN, State Auditor.
    In Banc,
    December 19, 1918.
    1. ACCOUNT AGAINST STATE: Approval by Auditor: Exception in Statute. Notwithstanding the statute says that the State Auditor shall audit, adjust and settle all claims against the State payable out of the Treasury “except only such claims as may be expressly required by law to be audited and settled by other officers or persons,” and notwithstanding the statute creating the Land Reclamation Department said that “the salary and expense accounts of the Commissioner and his associates shall be paid monthly by the State Auditor on vouchers made out and approved by the Commissioner,” the State Auditor is not bound by a voucher drawn and approved by the Commissioner in favor of an employee, but may go behind such approved voucher and ascertain for himself the underlying facts.
    2. -: -: Stenographer: No Services as Such. Where the statute provided that the Land Reclamation Commissioner “shall have power to employ a stenographer,” and the Appropriations Act appropriated $2000 as “salary of stenographer,” and the vouchers approved by the Commissioner state they are for salary of an employee as “stenographer,” the State Auditor is not required to allow said account and issue his warrant in payment thereof, if said employee was not a stenographer and performed no stenographic work whatever for the State, although she performed other clerical work.
    S. -: Salary: Performance of Official Duties: Employee. The rule that “the right of a public officer to the salary of his office is a right' created by law, is incident to the office, and not the creature of contract, and is not dependent upon tile fact or value of services actually rendered,” is to be applied only to a public officer, and bas no application to a mere employee of such an officer, who has- no statutory authority, express or implied, to employ such person.
    Mandamus.
    Writ Quashed.

      A. T. Dumm for relator.
    (1) Respondent’s return admitting, as it does, that relator was duly appointed stenographer for the Department of Land Reclamation, pursuant to law and by the officer authorized by law to make the appointment; admitting that this officer duly made out and approved vouchers for her salary for the time of her employment, to-wit, from April 1, to September 14, 1917, and that on said last named date said vouchers were duly presented to respondent for allowance; admitting that there was then and now is in the State Treasury, to the credit of the appropriation for the salary of the stenographer of the Department of Land Reclamation more than sufficient money to pay said vouchers, nothing remained for respondent to do but to draw Kis warrant upon the Treasury for the undisputed amount of her salary; and having failed to do so, the peremptory writ should be awarded. Sec. 2, Laws 1913, p. 406; Sec. 4, Laws 1913, p. 406; Sec. 52a, Appropriation Act of 1917, Laws 1917, p. 17; Sec. 11813, R. S. 1909; Sec. 11827, R. S. 1909; State ex rel. v. Mason, 153 Mo. 56; 19 Am. & Eng. Ency. Law (2 Ed.), pp. 786, 787; State ex rel. v. Gilbert, 163 Mo. App. 686; State ex rel. v. Walbridge, 153 Mo. 203; Bates v. City of St. Louis, 153 Mo. 18; Gracey v. City of St. Louis, 213 Mo. 397; Danley v. Whiteley, 14 Ark. 702. (2) Relator having been admittedly appointed stenographer by the officer authorized by law to make the appointment, and the Commissioner having found that relator performed the services which this officer required her to perform, respondent cannot justify his refusal to draw a warrant for her salary on the ground that she was not qualified to fill the place to which she had been duly and legally appointed. To uphold respondent in this contention would be to make him, and not the head of the department, the judge of the qualifications of an employee in that department. State ex rel. v. State Auditor, 46 Mo. 326; Sec. 4, Laws 1913, p. 407; State ex rel. Weeks v. Bamble, 13 Fla. 9; Swann v. Buck, 40 Miss. 268; Cooke v. Iverson, 52 L. R. A. (N. S.) 415; State ex rel. v. Mason, 153 Mo. 56; State ex reí. v. Gilbert, 163 Mo. App. 686; Sec. 11827, R. S. 1909; Secs. 2 and 4, Laws 1913, p. 406; Danley v. Whiteley, 14 Ark. 7021; 23 Am. & Eng. Ency. Law (2 Ed.), p. 364; 19 Am. & Eng. Ency. Law (2 Ed.), pp. 786, 787.

      Frank W. McAllister, Attorney-General, and Shrader P. Hoivell, Assistant Attorney-General, for respondent.
    (1) By express statutory provision it is made the duty of the State Auditor to “audit, adjust and settle all claims against the State payable out of the treasury, except only such claims as may be expressly required by law to be audited and settled by other officers or persons.” Secs. 11813, 11825, 11829, 11842, R. S. 1909. (2) Neither the act authorizing the appointment of a stenographer to the Land Reclamation Commissioner, nor the act making appropriation for the payment of such services, expressly requires such claim to be audited and settled by any other officer, and therefore, the auditing thereof falls within the statutory duty east upon the State Auditor by Sec. 11813, R. S. 1909. Laws 1913, p. 407, secs. 2 and 4; Laws 1917, p. 17, sec. 52a. (3) The Auditor, in the discharge of his specific, express statutory duty to “audit, adjust and settle all’ claims against the State,” is not bound by the voucher filed with him by the certifying officer or person, but has full authority to go behind such certificate and ascertain the facts for himself before issuing his warrant on the State Treasury. Morgan v. Buffington, 21 Mo. 549; State ex rel. McMurty v. Thompson, 37 Mo. 176; State ex rel. v. Draper, 50 Mo. 24; State ex rel. v. Clark, 61 Mo. 263; State ex rel. Daily v. Thompson, 41 Mo. 13; State ex rel. v. Allen, 180 Mo. 27; State ex rel. v. Wilder, 196 Mo. 418. (4) A public officer is entitled to the compensation provided for such office, not by virtue of a contractual relation but by reason of such salary being incident to the office; a stenographer or clerk, however, is an employee, and to be entitled to the salary authorized, the services thereunder must in fact be rendered. Mechem’s Public Officers, sec. 855; 29 Cyc. 1366 and 1422; Thropp on Public Officers, secs. 443 and 500; Bates, v. St. Louis, 153 Mo. 18; State ex rel. v. Walbridge, 153 Mo. 194; State ex rel. v. Gordon, 245 Mo. 27. Since the relatrix, manifestly, is not a public officer as defined in the above authorities, but her position as a stenographer constitutes merely an employment, she would be entitled to the compensation provided only in the event that' the services were in fact rendered. Paden v. City of New York, 92 N. Y.. Supp. 926, 928; Throop v. Langdon, 40 Mich. 682. (5) The evidence clearly showing that relator was not a stenographer and did not render any stenographic services to the State under her appointment, the action of the respondent, in refusing to draw his warrant, was proper. Laws 1913, p. 407, sec. 2; Laws 1917, p. 17, sec. 52a; In re Appropriations, 25 Neb. 662.
   WILLIAMS, J.

The facts concerning this proceeding a.re concisely and sufficiently stated in the brief of relatrix, from which we quote as follows:

“This is a mandamus proceeding, original in this court, begun by the filing, on April 9, 1918, of relatrix’s petition for an alternative writ of mandamus The alternative writ was awarded on April 27, 1918, returnable , May 27, 1918. On the same date, to-wit, April 27, 1918, the issuance and service of the alternative writ were waived and the petition taken as and for the atlernative writ by the Attorney-General, for the respondent. On June 22, 1918, respondent filed his return in this cause. On November 2, 1918, W. S. Pope, attorney at law, of Jefferson City, Missouri, was by the court appointed special commissioner to take the testimony and report his finding of- facts to the court. On December 6, 1918, said commissioner filed with the clerk his report as to the finding of facts in said cause.

The petition for the alternative writ, which is taken as and for the writ itself, alleges, and the return admits, that John H. Nolen was at all the times mentioned in the petition the duly appointed, qualified and acting Land Reclamation Commissioner, and that respondent is and since the second Monday in January, 1917, has been the duly elected, qualified and acting State Auditor of the State of Missouri; that the said John H. Nolen, Land Reclamation Commissioner, as aforesaid, was authorized and empowered to employ a stenographer for said department of Land Reclamation, at a salary of one thousand dollars annually; that on the 1st day of April, 1917, relatrix was duly appointed by said John H. Nolen as stenographer for said department of Land Reclamation, at a salary of one thousand dollars per year; that on the 4th day of September, 1917, the said John H. Nolen, Land Reclamation Commissioner, as aforesaid, properly made out and approved vouchers in favor of relatrix in the sum of $455.42, in payment for her services as stenographer for said department of Land Reclamation, for the period from April 1, 1917, to September 14, 1917; that on said last named date, the said vouchers were duly presented to and filed with respondent for audit, allowance and payment as a claim against the State of Missouri; that there was on said 14th day of September, 1917, and now is in the State Treasury to the credit of the appropriation for salary of the stenographer of said department of Land Reclamation more than sufficient m'oney to pay said vouchers and accounts for said sum of $455.42, and that respondent refused and still refuses to audit and allow said account and to draw his warrant upon the State Treasurer for the payment of the same.”

The return denies that relatrix did, under and by virtue of her appointment as aforesaid, serve as stenographer for said department of Land Reclamation, for April 1, to September 14, 1917, and denies that there was or is now due her, for her services as alleged, the sum of $455-42, and charges that the said relatrix did not perform any duties or render any services between said dates by virtue of her said appointment as stenographer for said department of Land Reclamation, and that there was not on said 14th day of September, 1917, and is not now due relatrix the sum of $455.42, or any other sum, for said alleged services.

The return then states that by reason of the failure and neglect of relatrix to perform any duties or render any services from April 1, to and including September 14, 1917, under her said appointment as stenographer as aforesaid, there was not on said 14th day of September, 1917, and is not now due relatrix from the State of Missouri the sum of $455.42, or any other sum, and that therefore respondent is not authorized to and is in fact prohibited by law, from auditing, allowing and drawing his warrant upon the State Treasurer for the payment of said sum.

The special commissioner appointed to take the testimony and report to this court his finding of facts, reports that John H. Nolen, as Land Reclamation Commissioner, was authorized to employ a stenographer at one thousand dollars annually, and that he employed relatrix as such stenographer, at one thousand dollars per annum, her duties to commence on the first day of April, 19l7; that relatrix was not a stenographer and could not do stenographic work, and that she did not do any stenographic work during the term of her employment, but that the work performed by her was purely clerical in its character, and consisted in going to' the office of the commissioner, when he was absent, opening the mail addressed to him as such commissioner, forwarding to him such as she deemed needed immediate attention, and communicating with him in regard to the business of the office; that the said commissioner was absent from his office, on duties therewith connected, about one-half of the time from April 1st to September 14, 1917, and that during his absence the relatrix was at his office daily, in both the forenoon and the afternoon, remaining there a sufficient length of time to examine the mails, ascertain the contents thereof, and communicate with him in regard thereto. The commissioner further finds from the evidence that the stenographic work required during the time of the employment of relatrix was performed by others and paid for, by the commissioner, to the parties performing the service, and that the commissioner has never presented any bills or received any compensation on account of the stenographic work done for the department during the time of the employment of relatrix; that no accounts for the salary of relatrix were presented until the expiration of the term of the commissioner, at which time he presented six separate monthly accounts for the salary of relatrix, at the rate of one thousand dollars per annum, approved by him, and that the respondent, as State Auditor, refused to allow the same, or to issue warrants therefor, for the reason that relatrix was not a stenographer and had not performed the service for which the charges were made.

It is contended by respondent that the State Auditor had no right to go behind the vouchers issued and approved by the Land Reclamation Commissioner, but that he was bound thereby and should now be ordered to draw his warrant upon the State Treasury for the amount of same.

We are unable to agree with this contention.

Section 11813, Revised Statutes 1909, in defining the duties of the State Auditor, provides that, among other duties, “he shall audit, and adjust and settle all claims against the State payable out of the Treasury, except only such claims as may be expressly required by law to be. audited and settled by other officers or persons

The above language is clear and unambiguous and has been applied at its full face value by former decisions of this court. [State ex rel. Daily v. Thompson, 41 Mo. 13; State ex rel. v. Wilder, 196 Mo. 418, and cases therein cited.]

Does the claim in the case at bar fall within the exception mentioned in the above statute? In other words, was the Land Reclamation Commissioner expressly required by law to audit and settle this claim within the meaning of the exception stated in said statute? We think not.

The only other statute which might be said to bear upon this point is Section 4 of the Act of March 25, 1913, Laws 1913, p. 407, creating the Department of Land Reclamation, which provides: “The salary and expense accounts of the commissioner and his associates shall be paid monthly by the State Auditor on vouchers made out and approved by the commissioner.”

In the case of State ex rel. v. Wilder, supra, the relator therein sought to compel the State Auditor to issue his warrant upon the State Treasury in payment of a fee-bill for criminal costs. The fee-bill had been properly certified under the statutes, Sections 2845 and 2847, Revised Statutes 1899, by the prosecuting attorney and the judge of the circuit court wherein the costs accrued. Section 2856, Revised Statutes 1899 (then under consideration), provided, that when a criminal cost fee-bill is certified by the judge and prosecuting attorney, ‘-he [the State Auditor] shall draw his warrant on the State Treasurer,” etc. It was contended in- that case, just as it is here, that certification by the judge and prosecuting attorney was conclusive upon the State Auditor and that he was bound thereby.

After a full discussion of the subject and a review of the authorities it was there held that the certificate of the judge and prosecuting attorney was not binding upon the State Auditor and that the statutes authorizing the judge and prosecuting attorney to certify the fee-bill did not fall within the exception provided under Section 10889, Revised Statutes 1899, which is the same as Section 11813, Revised Statutes 1909, supra.

We are unable to distinguish the principle in volved in the case from the one involved in that case. Since the point is there fully discussed and authorities cited, further discussion is now unnecessary. For the reasons therein stated we hold, that the approved vouchers in the case at bar were not conclusive, but that the Auditor had the right to go behind said vouchers and to ascertain for himself the fact underlying.

II. The next question for determination is whether or not, under the facts disclosed, the claim of relatrix is one that should have been allowed by the State Auditor. We are of the opinion that this question must be answered in the negative. Upon the sworn testimony of relatrix it stands conceded that she was not a stenographer and performed no stenographic work whatever for the State. The statute under which relatrix was appointed provided that the Land Reclamation Commissioner “shall have power to employ a stenographer•” [Laws 1913, p. 407.] The Appropriation Act providing the pay for said services appropriated $2000 as “salary of stenographer.” [Laws 1917, p. 17.]

The vouchers which relatrix presented to the State Auditor state that they are for salary as “stenographer” and the petition in this case is based upon the theory that she served as such stenographer.

The word stenographer is a word in common use with a well defined meaning. [See Webster’s New International Dictionary, title, stenographer. See also, In re Appropriations, 25 Neb. 662.]

There does not appear to have been any authority either express or implied, granted to the Land Reclamation Commissioner to employ a mere clerical assistant. Neither does there appear to have been any appropriation made for the pay of such an assistant.

Since in the present case it appears that relatrix performed no stenographic services for the State and at no time during her alleged employment did she serve as a stenographer in that department, we are of the opinion that she can have no lawful claim against the money which was specifically appropriated by the Legislature for the pay of a stenographer. For the above reasons the State Auditor properly refused to. draw his warrant therefor.

Relatrix relies upon a line of cases, of which the ease of State ex rel. v. Walbridge, 153 Mo. l. c. 203, is a fair sample, which held that “the right of a public officer to the salary of his office is a right created by law, is incident to the office, and not the creature of contract, nor dependent upon the fact or value of services actually rendered.”

Those cases can be of no aid to relatrix in the present case. She was not a public officer within the meaning of the rule above stated. She was a mere employee of the Land Reclamation Commissioner. [Throop v. Langdon, 40 Mich. 673, l. c. 682.] We are not aware that the above rule applicable to public offices has ever been applied to mere employees of the Government.

From what has been said above it follows that the alternative writ of mandamus heretofore issued in the cause should be quashed.

It is so ordered.

All concur, except Graves, J., not sitting.


author: WOODSON, J.

text:
    SOUTHERN REAL ESTATE & FINANCIAL COMPANY, Appellant, v. BANKERS SURETY COMPANY.
    In Banc,
    December 19, 1918.
    1. INSTRUCTION: No Evidence: Builder’s Contract: Over-Payment. If there is no evidence upon which to base an instruction on the measure of damages, it should' be refused. Where the contract was that the plaintiff was- to pay a building contractor “each month ninety per cent of the work in place during the preceding month,” and the uncontradicted evidence is that the payments made by plaintiff did not exceed ninety per cent of the v-alue of the work and material in place at the time the contractor abandoned the work, an instruction asked by the defendant, who is sued on the contractor’s indemnifying bond, predicated on the , assumption that plaintiff paid more than ninety per cent, does not correctly state the measure of damages, and should be refused.

      2. -: Measure of Damages: Builder’s Contract: Overpayment. Where the contract provided that the agreed price for constructing a theatre-and-hotel power plant was “to be paid in installments on the 15th day of each month of ninety per cent of the work in place during the preceding month, according to the certificate of the architect,” and the contractor entered into bond to keep the owner harmless and indemnified against every claim and lien against the building and to repay to the owner all money he might pay to others on account of the failure of the contractor to pay said claims or to complete the building, the owner, in a suit on the bond, is entitled to recover any amount paid by him for the completed building, in excess of the contract price, subject to a credit to the surety for any amount paid to the contractor in excess of ninety per cent of the value of the work and material in place at the time the contractor abandoned the work, as estimated monthly by the architect; the instruction cannot limit the amount which the owner can recover to ten per cent of the whole cost of the completed building as finally ascertained.
    3. VERDICT: Mistakes or Prejudice of Jury; One Half Proven Damages. Where the plaintiff, by the uncontradicted evidence, clearly established that, if he was entitled to recover at all, he was, under the breached contract, entitled to recover $11,064.47, and the jury, either because they made a mistake in calculating the items or disregarded the correct instructions given, returned their verdict for only about one-half the amount, the court, upon plaintiff’s motion, should grant a new trial,

      Appeal from St. Louis City Circuit Court — Hon. Charles B. Davis, Judge.
    Reversed and Remanded.

      Reynolds & Harlan and Lydia Lee for appellant.
    (1) The instructions of the court prescribed the rule for measuring the damages in this cause, by which the jury must be guided in arriving at its verdict. The award not being warranted by the rule therein laid down is such evidence of prejudice or mistake as renders it the duty of the court to set aside the verdict. R. S. 1909, sec. 2022; Baylies on New Trials, p. 505; Morris v. Railroad, 136 Mo. App. 393; Fischer v. St. Louis, 189 Mo. 579; Watson v. Harmon, 85 Mo. 443; Fury v. Merriman, 45 Mo. 500; Pritchard v. Hewitt, 91 Mo. 551; Edwards v. Railway, 82 Mo. App. 485. (2) It is conceded that defendant is released only to the extent to which it is injured by over-payments made to the contractor. Just what constitutes an “overpayment” is the controversy arising upon the instructions on the question of the measure of damages. The correct rule is that stated by the court’s instruction given at plaintiff’s request, namely, that plaintiff is entitled to recover any amount paid by it for this work in excess of the contract price, subject to credit to the defendant for any amount paid to the contractor in excess of ninety per cent of the value of the work and materials in place in the structure at the time of its abandonment by the contractor. Howard County v. Baker, 119 Mo. 397; Milavetz v. Oberg, 164 N. W. 910; Crudup v. Portland Cement Co., 156 Pac. 899; National Surety Co. v. Haley, 159 Pac. 292; Gorton v. Freeman, 152 Pac. 127; School District v. ‘U. S. F. & G. Co., 152 Pac. 668; Southwestern Surety Co. v. Lumber Co., 149 Pac. 1038; British Amer. Tob. Co. v. Surety Co., 164 N. T. Supp. 406; Hastings Land Imp. Co. v. Empire State Surety Co., 156 App. Div 258; Welsh v. Warren, 159 S. W. 106. (3) The burden of proving such injury as may have been sustained by it, by reason of the alleged over-payments, is on the defendant surety. Welsh v. Warren, 159 S. W. 106; Lackland v. Renshaw, 256 Mo. 133.

      Jeffries <& Corum for respondent.
    (1) The instruction should have declared the law to be. that the defendant was entitled to a credit for any amount the owner paid to the contractor in excess of ninety per cent of the value of work and materials in place with reference to the contract price. In other words, that it was the duty of the architect to ascertain the value of work and materials in place in order to determine what proportion of the contract had been performed, and the owner was -entitled to pay the contractor only ninety per cent of the contract price with relation to the proportion of the contract completed and performed. Southern Real Estate & Financial Co. v. Bankers Surety Co., 184 S. W. 1030; Fidelity & Deposit Co. v. Agnew, 152 Fed. 959; O’Neill v. Title Guaranty & Trust Co., 191 Fed. 570; Hawkins v. Burrell, 69 App. Div. (N. Y.) 464, 74 N. Y. Supp. 1003; National Surety Co. v. Long, 79 Ark. 573; Neilson v. Title Guaranty & Surety Co., 159 Pac. 1151. (2) The effect of the instruction was to declare to the jury that plaintiff was entitled to recover damages, even though the total cost to plaintiff was less than the contract price. Plaintiff could not have suffered damages unless the abandonment of the work by the contractor caused the plaintiff to expend more than the contract price. The instruction either misdirected the jury, or was so directed as to necessarily confuse them in arriving at a correct solution of the issues. Knapp v. Hanley, 153 Mo. App. 169. (3) The court erred in refusing the instruction requested by defendant, for the reason that said instruction correctly declared the law as to plaintiff’s measure of damages. Southern Real Estate & Financial Co. v. Bankers Surety Co., 184 S. W. 1030; Fidelity & Deposit Co. v. Agnew, 152 Fed. 959; O’Neill v. Title Guaranty & Trust Co., 191 Fed. 570; Hawkins v. Burrell, 69 App. Div. (N. Y.) 464, 74 N. Y. Supp. 1003; National Surety Co. v. Long’, 79 Ark. 573; Neil-son v. Title Guaranty & Surety Co., 159 Pac. 1151. (4) The case bad been tried once and had been appealed to tbis court and tbis court rendered an opinion bolding that tbe owner was entitled to pay tbe contractor only ninety per cent of tbe value of work and materials in place witb reference to tbe entire contract price. Without reference to whether tbis doctrine should be permitted to stand as tbe law of tbe State, it is plainly the law of tbis case. Armour v. Frey, 253 Mo. 465'; Ward v. Harén, 183 Mo. App. 569; Bagnell Tie & Timber Co. v. M., K. & T., 250 Mo. 514; Scott v. Parkview Realty & Imp. Co., 255 Mo. 76; Butz v. Murch Bros. Contr. Co., 137 Mo. App. 222; Yancleve v. St. Louis, M. & S. E. R. Co., 137 Mo- App. 332; Roth Tool Co. v. Champ Spring Co., 146 Mo. App. 1; State ex rel. Shipman v. Allen, 144 Mo. App. 234. (5) Tbe judgment cannot be remanded witb direction to enter judgment for tbe full amount claimed by plaintiff. State v. Frederici, 269 Mo. 695; Johnson v. Grayson, 230 Mo. 394; Tierney v. United Railways Co., 185 Mo. App. 724; McDonald v. Mossman, 181 Mo. App. 476.
   WOODSON, J.

This is tbe second time tbis case has reached tbis court. Tbe opinion written on tbe former appeal is reported in tbe 184 S. W. 1030, which reversed and remanded tbe cause for another trial.

Tbe facts are practically undisputed, but tbe contest centers around two legal propositions, which will be presently stated.

When tbe mandate of tbis court reached tbe circuit court the plaintiff filed an amended petition, setting up tbe building contract entered into between tbe plaintiff and tbe E. H. Abadie Company, a contractor, whereby tbe latter undertook “to provide all of tbe materials and perform all 'the work for the steam heating, ventilating and power plant for a hotel and theatre building being erected on the northeast corner of Seventh and Market Streets, in the city of St. Louis,” for the sum of $60,000, “to be paid in installments on the 15th day of each month of ninety per cent of the work in place during the preceding month, according to the certificate of the architect, the final payment to be made thirty days after the completion of the work included in the contract.”

Counsel for the plaintiff correctly states the case substantially in the following language:

‘ ‘ The amended petition plead the bond entered into between the E. H. Abadie Company, as principal, and defendant, as surety, and the plaintiff, as obligee, wherein defendant agreed to keep the plaintiff ‘harmless and indemnified from and against all and every claim, demand, judgments, liens and mechanic’s liens, costs and fees of every description, incurred in suits or otherwise, that might be had against it or against the building to be erected under said contract, including alterations, and to repay to the said plaintiff all sums of money which it might pay to other persons on account of work and labor done, or materials furnished’ on or for said buildings, by reason of the failure on the part of the said E. H. Abadie Company to pay to said plaintiff all damages it might sustain and all forfeitures to which it might be entitled by reason of the nonperformance or mal-performance on the part of said E. H. Abadie Company of any of the covenants, conditions, stipulations and agreements of said contract including such alterations and additions.’ The penalty of the bond is $15,000. Said bond further provided that the parties might by agreement make alterations and additions to said contract, provided the additional cost thereof did not exceed $5000. Thereafter an amendment to the bond was agreed upon by the parties whereby alterations and additions to said contract might be made to the amount of $15,000 without any other or further consent of the surety.

“The amended petition further plead that additions were made to said contract at a cost of $8963.98, the partial performance of the contract and the abandonment thereof by the contractor, after payment by plaintiff to said contractor of $62,5^02.50, upon certificates of the architect, and that said amount constituted approximately ninety per cent of the value of the work and materials in place on said building to said time; that thereafter plaintiff paid on account of materials furnished on the order of the contractor and incorporated in the building, to various persons and corporations, the sum of $2432.50; that plaintiff paid on account of mechanics r-lien judgments against said building on account of material furnished to said contractor, the aggregate sum of $9468.21; that the cost to plaintiff to complete said contract was $5607.24; a total cost to plaintiff, over and above the contract price of $68,962.98, of $11,064.47, for which amount with interest plaintiff prayed judgment.

“Defendant answered, admitting the execution of the contract and bond and the terms thereof, and as an affirmative defense, plead a violation of the provision of the contract in that plaintiff overpaid the contractor. Other affirmative defenses were set out in said answer, but were apparently abandoned by defendant at the trial, as no evidence was offered by defendant, and no instructions were asked save on the question of overpayment to the contractor.

“The defendant offered no evidence at the trial, and that introduced by plaintiff was to the effect that the contract was breached by the contractor; that the money paid the contractor before the breach was ninety per cent or less of the value of the work in place; that all the money paid to others, including that expended to complete the contract, was paid for materials which actually went into the building in the performance of the contract.

“Frederick C. Bonsack testified that he was the architect designated by the contract of the parties, the performance of which the bond in suit was executed to secure; that his particular duty was to see that the work was done according to plans and specifications; that in pursuance of this duty, he was on the building almost every day and had Samuel C. Black, his superintendent, representing him there all of the time. Mr. Bonsack testified to the additions and alterations made to the contract commonly known as ‘extras,’ being plaintiff’s Exhibits E-F, Exhibits Gr-H, Exhibits I-J, Exhibits K-L, Exhibits M-N, Exhibits O-P. The aggregate amount of these ‘extras’ was the $8963.98, constituting the additions to the original contract.

“He further testified as to his method of determining the amount of money to be paid to the contractor that on each month the contractor would submit a statement to his office of the amount of work he did during the month past; that he (Bonsack) had his 'superintendent and the representative of the owner on the work to check up this statement, .after which he checked it himself and determined to what extent it was correct; that in arriving at this amount he took into consideration the amount of work that had been done according to the best of his ability and that he allowed him ninety per cent of the amount thereof.

“In connection with the testimony of the architect, Bonsack, as to his manner of making this computation, plaintiff offered in evidence his certificates identified bv him as Plaintiff’s Exhibits Q, R, S, T, IT, Y, W, X, Z, AA, BB, respectively, stating that each of them represented ninety per cent or less of the work in place at the time. Each of these certificates had appended thereto an acknowledgment of receipt of the money called for therein by the contractor, said receipts being admitted by defendant to be genuine, showing payment to said contractor on account of said contract of the sum of $62,502.50.

“He further identified the orders on the owner to pay various amounts to materialmen, same being Plaintiff’s Exhibits 00, DD, and EE, and stated that these amounts were paid and that the material they represented went into the building under the Abadie contract.

“On cross-examination he testified that the incompleted portion of the contract would not bear the same ratio to the entire work as the $5607.24 which it cost to complete would bear to the entire contract price, because it would cost more labor to take hold of a job in that condition and finish it than it would have cost the original contractor to complete it.

“Samuel 0. Black confirmed Bonsack’s statements as to his employment in connection with the Abadie contract; that the money paid direct to the materialmen after Abadie abandoned the contract covered specified articles which went into the building. He likewise confirmed Bonsack’s statement that both he and Bonsack checked over Abadie’s statements and determined from an examination of the work itself how much was due, and that the amounts allowed were based on estimates of ninety per cent of the work in place, and that the $62,500 paid Abadie represented ninety per cent of the actual work and materials in place.

“He further testified to the amount it cost to complete the contract — some $5600, he said; that he participated in buying the materials and employing the labor to complete the contract, and that this amount was the fair and reasonable cost of the work, though it was probably considerably more than it would have cost the contracto!-, if he had finished it without allowing his work to lax; that the contx'actor had allowed his work Ho lax.’

“Bonsack, on further examination, testified that the work was done during the panic of 1907, money was hard to get and the contractor was not overpaid at any time; that at the time the contractor quit, the work was virtually complete, minor details only to be finished up, and that the $62,500 paid to Abadie represented ninety per cent or less of the work and materials in place.

“The deposition of Edward A. Richards was offered, wherein he testified that he was a mechanical engineer and was employed by the plaintiff to superintend the erection of the building in question; that Mr. Black, acting for Mr. Bonsack, the architect, assisted him in overseeing the Abadie contract; that after Abadie abandoned the contract the work was completed under the direction of himself and Mr. Black according to the original plans and specifications; that he and Black employed the labor at union wages, and bought the material at the lowest price obtainable, taking competitive bids therefor; that he and Black both kept records .of the moneys expended, which records were exactly alike, and that he had recently examined Black’s book and he identified the item constituting the architect ’s certificate of the cost of completion as the amounts actually expended in the work, stating in each instance what the article so purchased was. His own record had been destroyed.

“The payment by plaintiff of mechanics’-lien judgments, due to the failure of the contractor to pay for labor and material, was shown, same with interest and costs totaling $9002.06.

“Joseph E. Martin, secretary of the plaintiff company, testified to the payment of the mechanics’-lien judgments and of an attorney’s fee for $460 for the defense thereof.

“Both parties offered instructions to the jury on the measure of damages. The instruction offered by plaintiff and given by the court is as follows:

“ ‘The court instructs the jury that if you find in favor of plaintiff you will assess its damages in the manner following:

“ ‘1: If you find from the evidence that the E. H. Abadie Company abandoned its contract before completing the work it undertook to perform, and if you further find from the evidence that thereafter the work was completed by plaintiff, then you must find and determine from the evidence the reasonable cost necessarily incurred by plaintiff to complete the heating and ventilating plant covered in the contract between plaintiff and the said E. H. Abadie Company and the amendments thereto.

“ ‘2. If you further find from the evidence that the E. H. Abadie Company purchased materials or incurred indebtedness for labor, for which materials and labor the said Abadie Company did not pay, and if you further find from the ’evidence that said materials were used in and became a part of the said heating and ventilating system contracted to be erected by said Abadie Company, and that said labor was employed on said work, then you must find from the evidence the amount of the claims thus incurred by the said E. H. Abadie Company and not paid by it, whether said claims were reduced to judgment in the form of a mechanic’s, lien or not.

“ ‘3. If you find from the evidence that there were claims unpaid by said Abadie Company, and if you further find from the evidence that some of said claims were reduced to judgment in the form of mechanics’ liens, then you will add to the principal sum of such judgments so found from the evidence the court costs incurred in each case and allow the plaintiff interest on said judgment and costs from the date of entry of the judgment in each case at the rate of sis per cent per annum up to this date. You will also allow the plaintiff the reasonable amount of any attorney’s fees paid by it to its counsel in connection with said mechanics’ liens.

‘4. If you find from the evidence that the contractor, the E. H. Abadie Company, abandoned its work before the completion thereof, and if you further find from the evidence that the work was completed by the plaintiff, then you must find from the evidence the total cost of the heating and ventilating plant contracted for to plaintiff, which cost you will determine by adding to the amount of money you find from the evidence that tbe plaintiff paid the E. H. Abadie Company before it abandoned the work the reasonable cost to plaintiff to complete the work, as found by you, pursuant to instruction one. If the • total cost thus ascertained to plaintiff was less than the contract price, with the extras authorized thereunder added, then you will credit the defendant with the difference between the actual cost to plaintiff and said contract price and credit the amount thus found in favor of the defendant and deduct same from any amounts you may find pursuant to this instruction in favor of the plaintiff.

“ ‘5. If you find from the evidence that the contractor abandoned the work before the completion of his contract, and if you further find from the evidence that plaintiff made payments to the said contractor after the work progressed and before it abandoned its contract, then you must determine from the evidence whether the amount so paid by the plaintiff to the contractor was in excess of ninety per cent of the value of the work and materials in place in the structure at the time of its abandonment by the contractor, and if you find from the evidence that the plaintiff did pay to the contractor more than ninety per cent of the value of work and materials in place as above stated, then you will determine from the evidence the amount of money paid by the plaintiff to said contractor in excess of said ninety per cent and the amount- thus found must also be credited to the defendant and deducted from any amount that you find due the plaintiff, pursuant to the previous paragraphs of this instruction.

“ ‘The court further instructs you that in no event can you find in. favor of the plaintiff in the principal sum of more than $11,045.47, the amount sued for in this case, and interest on the mechanics’ liens from the date of the payments thereof to this date.’

“The defendant requested the following instruction, which was refused by the court:

‘The court instructs the jury that the liability of the defendant herein, if you find there is any liability, is the difference between the total amount of money expended by plaintiff on the contract-referred to in the evidence and $68,807.25, being the gross contract price, which amount, however, is subject to a credit of any payment, if any, made by the owner to the contractor in excess of ninety per cent of the value of the work and materials in place at the time of the abandonment of the contract by the Abadie Company with reference to the entire contract price, which means that if ninety per cent of the contract had been performed at the time the Abadie Company abandoned the work, then the said amount, being the difference between the gross contract price and the total amount of money expended by the plaintiff on the contract, is subject to a credit represented by any amount, if any, the owner paid to the contractor, or on his account, prior to his abandonment of the work in excess of ninety per cent of the contract price, and that said amount, less said credit, is the maximum amount of defendant’s liability.’ ”

I. Counsel for the plaintiff insist that since the instruction given by the court at its request correctly declared the law as to the measure of damages it was entitled to recover in this case, and since the uncontradicted evidence showed that it was entitled to recovery of $11,064.47 and interest, and since the verdict returned by the jury was for only $7687.50, the jury arbitrarily disregarded the instruction given by the court, or through prejudice or by mistake found for plaintiff in a sum which was only about one-half of what was actually due it.

This insistence assumes the correctness of the instruction given by the court in behalf of the plaintiff as to the measure of damages, which is denied' by counsel for defendants, and the counter contention is made that the instruction asked by them correctly ■ declared the rule as to the measure of damages, and that the court erred in refusing to give it.

We will dispose of these cross-insistences in the inverse order in which they are stated. Regarding the latter: The court properly refused the defendant’s instruction for one reason, if for none other, namely: This instruction is predicated upon the contention that the evidence tended to show the plaintiff paid the contractor, prior to the time it abandoned the work, more than ninety per cent of the work and materials then in place in said plant, and was therefore a violation of the building contract made between them, which it is contended released the defendant, the surety, from all injury it received by reason of said over-payments. But '■ counsel are mistaken in that contention, for there is no evidence upon which to base it. The uncontradicted evidence is to the effect that the payments made by plaintiff to the contractor, prior to its abandonment of the work, did not exceed ninety per cent of the work and materials then in place. In the absence of such evidence, the action of the court in refusing the instruction was clearly correct.

Attending the second insistence: Independent of what has just been said, we are clearly of the opinion that the court correctly declared the measure of damages in the instruction given by it on behalf of the plaintiff, namely, that the plaintiff was entitled to recover any amount paid by it for the completed plant, in excess of the contract price, subject to a credit to the defendant for any amount paid the contractor in excess of ninety per cent of .the value of the work and material in place in the plant at the. time of its abandonment by the contractor.

This identical question came before this court in the case of Howard County v. Baker, 119 Mo. 397, and on page 106 the court, in speaking through Gantt, P. J., we said:

“It is next insisted that the sureties are released from their undertaking in the bond, because they claim that the county court overpaid the contractor during the progress of the work; that the provisions relative to the payments were for the benefit of the sureties, and the county court voluntarily abandoned security it should have retained. The stipulation of the contract on this subject was, that the court ‘should pay eighty-five per cent on the amount of material furnished on the grounds and worlc done on the buildings, on the first of each month, as the worlc progressed, and this per cent should be ascertained, upon the estimate of the superintendent, certified by the architects and indorsed by the court.’

“The appellants seek now to interpolate a new provision or element in the estimate, namely, that the court shoud not at any time, have paid more than eighty-five per cent of the amount that the work done and material furnished bore to the whole cost of the building. But this would have been an unauthorized change in the contract.

“It might have been that the contractor could not build the house for the amount of his contract, but it would not justify the court in violating its agreement with him to pay him eighty-five per cent of the materials furnished and work done each month.

“The contract is plain and unambiguous, and there is no room to place upon it the construction contended for. Had the county court placed such a construction on it, pending the building, it might have offered the contractor a very convenient excuse to abandon his contract, as he subsequently did, without it.

“The payments were made on the estimates of the superintendent. In the absence of fraud, of which there is no evidence whatever, his certificate was conclusive on the parties. [Williams v. Railroad, 112 Mo. 463.] The referee found as a fact the payments were made each month as the contract required and his findings have the effect of a special verdict. [Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Vogt v. Butler, 105 Mo. 479.]”

The same rule is announced in the following cases: Milavetz v. Oberg, 164 N. W. (Minn.) 910; Crudup v. Portland Cement Co., 156 Pac. (Okla.) 899; National Surety Co. v. Haley, 159 Pac. (Okla.) 292; Gorton v. Freeman, 152 Pac. (Okla.) 127; British-Amer. Tob. Co. v. U. S. F. & G. Co., 164 N. Y. S. 406; Hastings Land Imp. Co. v. Empire State Security Co., 156 App. Div. (N. Y.) 258; Welsh v. Warren, 159 S. W. (Texas) 106; Southwestern Surety Co. v. Lumber Co., 148 Pac. 1038; School District v. U. S. F. & G. Co., 152 Pac. 668.

There are some expressions contained in the opinion of the court delivered upon the former appeal, which appear to be inconsistent with the views here expressed, but after a careful reexamination of the authorities we are óf the opinion that they should not be adhered to, and they aré overruled.

We, therefore, rule both of these insistences against the defendant.

II. Returning to the question regarding the amount of the verdict. The • uncontradicted evidence shows that the contract price of the structure was $68,962.98; that the plaintiff paid the contractor $62,502.50, upon the certificates of the architect, prior to his abandonment of the work; that thereafter he paid on account of materials furnished on the order of the contractor and incorporated in the building to various persons the sum of $2432.50; that he paid on account of mechanics’ lien judgments against said plant on account of materials furnished to the contractor, aggregating $9468.21 and that he paid $6697.24 in addition, to complete said plant after the contractor abandoned the work, aggregating something over $80,000 with attorney fees, etc., to be added, making the total cost to plaintiff oyer and above the contract price of $68,962.98 of $11,064.47; but the verdict of the jury was for only $7687.50, or about one-half of the amount with interest the evidence showed was due the plaintiff.

In the light of Section 2022, Revised Statutes 1909, and the adjudications of this and other states upon this question, I am unable to see how we can permit this verdict to stand. Said section of the statute, in so far as is here material, reads as follows: “In every case where there has been ... a mistake by the jury, or a finding contrary to the direction of the court . . . the court . . . shall, on motion of the proper party, grant a new trial,” etc.

Evidently the jury, under the uncontradicted evidence in this case, either made a mistake in figuring up the amount of the verdict or else it disregarded the instruction of the court, which told them that if they found for plaintiff, then they would find for it in a sum equalling the aggregate of the various amounts before mentioned, that is, of course, if they found that those amounts were correct; and it is difficult to see how they could have found otherwise under the undisputed evidence in this case, especially in the light of the fact that upon the saíne evidence they found the merits of the case for plaintiff and about one-half of the sum that evidence showed was actually due plaintiff. In discussing a similar question in the case of Pairgrieve v. Moberly, 29 Mo. App. 141, 1. c. 152, where the uncontradicted evidence showed the plaintiff was seriously and permanently injured, and assessed her damages at one dollar, Philips, P. J., said.

“While it is to be conceded to defendant that its evidence tended to show that the injuries were perhaps less serious and permanent than shown by plaintiff’s evidence, yet it were trifling with obvious facts, almost incontrovertible, to say that her injury was not painful and serious. A dollar compensation for such an injury strikes the mind as monstrous. Such verdicts by juries are justly to be regarded as public misfortunes, as they tend, in large measure, to strike down popular respect for the jury system. No broader highway can be opened to expose it to the full view of public contempt than such awards as they made in this case. The remedy for the increasing evil rests mainly with the trial courts in awarding a venire de novo, after publicly rebuking the jury for such an abortion of justice.”

In the case of Morris v. Mo. Pac. Ry. Co., 136 Mo. App. 393, Johnson, J., in discussing this same question, on.page 397, clearly and forcefully stated the law in the following language:

“The question of law for our determination is whether the trial court possessed authority to exercise such discretion. The rule thus stated by the Supreme Court in Hoepper v. Hotel Co., 142 Mo. l. c. 387, has repeatedly received recognition: ‘The presumption is always in favor of the correctness of the rulings of the circuit court. It has committed to it much discretion in the matter of granting new trials and this court should not interfere unless its discretion has clearly been abused. It is therefore uniformly held that an appellate court will not interfere with the discretion of the circuit court in granting a new trial on the ground that the verdict is against -the weight of the evidence. The proceedings are all in the presence of the court and it can better judge of the fairness of the trial than the appellate court which has before it the cold record only.’

“An exception to this rule has been found in actions ex delicto where the damages cannot be measured by any accurate rule and are not susceptible of direct proof. Speaking of such cases, we said in Edwards v. Railway, 82 Mo. App. l. c. 485: ‘ They admit of no other test than the intelligence of the jury, governed by a sense of justice.' To the jury, therefore, as a favorite and almost sacred tribunal, is committed, by unanimous consent, the exclusive task of examining the facts and circumstances, and valuing the injury, and awarding the compensation in damages. The law that confers upon them this power and exacts of them the performance of this solemn trust favors the presumption that they are actuated by pure motives, and it is not until the result of the deliberation appears in form calculated to shock the understanding and impress no dubious conviction of their prejudice and passion that courts have found themselves compelled to interpose.’ “The exception applies to actions for personal wrongs such as personal injuries, slander, malicious prosecution and the like. But where the reason for the exception does not obtain the general rule applies. It is immaterial whether the action be ex contractu or ex delicto. If the damages may be measured by a definite rule and under that rule may be ascertained with a fair degree of certainty it not only is the right but the duty of the trial judge to supervise the verdict and to set it aside when satisfied that it is against the clear weight of the evidence. In Bayliss on New Trials and Appeals, page 505, the author says: ‘Where the law itself prescribes the rule of damages to which alone the plaintiff is entitled if he recover, a disregard of the law, and an award of a sum not warranted by the rule, is' such evidence of passion, or prejudice, or more frequently, of mistake or misapprehension, as will render it the duty of the court to set aside the verdict.’

“In Watson v. Harmon, 85 Mo. l. c. 447, the Supreme Court, in recognizing the exception to the general rule, observed: ‘But in cases of breach of contract and injury to property which have fixed standards of value, if there appears glaring deficiency in the verdict, justice demands a reversion.’ Very clear and to the point is what was said by the Court of Appeals in the following excerpts from the opinion in McDonald v. Walter, 40 N. Y. 551: ‘Nevertheless, it would be strange, if true, that no instance should occur in which, through a misapplication of the law to the facts which they find proved, or through prejudice or passion, or mistake, injustice is done, which it became the duty of the court to correct. While the general rule should be preserved, it would not be safe to assert the uncontrollable supremacy of the jury. Both in England and in this country, therefore, the court has always exercised the power of reviewing the evidence on a case made for the purpose, and of granting a new trial, where upon a cool and deliberate examination the ends of justice seemed to require it. And this is always the plain duty of the court where the verdict is palpably against the law applied to the facts found. It is upon these principles that verdicts for an excessive and extravagant amount of damages are set aside; and where the law itself prescribes the rule of damages to which alone the plaintiff is entitled, if he recover, a disregard of the law, and an award of a sum not warranted by the rule, is such evidence of passion, prejudice, or more frequently of mistake, or misapprehension, that the verdict of the jury ought not and will not be permitted to stand. It would be a discredit to the administration of justice if this were not so. A verdict for a grossly inadequate amount stands upon no higher ground in legal principle, nor in the rules of law or justice, than a verdict for an excessive or extravagant amount. It is doubtless true that instances of the former occur less frequently because it is less frequently possible to make it clearly appear that the jury have grossly erred. But when the case does plainly show such a result, justice as plainly forbids that the plaintiff should be denied what is his due, as that the defendant should pay what he ought not to be charged. The power of the court to award a new trial when dissatisfied with the verdict, on this ground, is I think not open to question, and whether because the verdict is too large or too small, the principle is precisely the same. And in practice it has been customary heretofore to grant a new trial in either case.’ ”

After discussing the effect of the evidence in that case Judge Johnson proceeded and held that the court, in granting a new trial on that ground, acted within the scope of its duty.

In the case of Fischer v. City of St. Louis, 189 Mo. 567, the plaintiff stumbled over an obstruction on the sidewalk, fell, broke and dislocated her ankle, from which she was confined to her bed for several months and suffered pains and distress naturally incident to such injuries; at the trial the jury found the facts for the plaintiff and assessed her damages at one dollar. This court in that case, in discussing this question through Lamm, J., on page 578, said:

“But it is stoutly contended by respondent that on all the facts of the case the jury should have found for respondent and that a one-dollar verdict in substance and effect amounts to that, merely taking the peculiar form it did out of regard for appellant on the question of costs.

“ ‘Raking in the dead ashes of antiquated cases,’ to borrow the animated language of Chancellor Kent in discussing the earlier cases pertaining to the rule in Shelley’s case, it may be found that a notion once prevailed that in an action founded in damages sounding in tort, the court might set aside a verdict excessively great as indicating passion, prejudice or misconduct on the part of the jury, but would not meddle with a verdict" immoderately small. This doctrine was illogical and, being based on no substantial reason, is exploded. The true rule seems to be that a court with great hesitation will invade the province of a jury and interfere with a verdict for damages sounding in tort for personal injuries, crirn. con., seduction, slander, libel and other cases, especially where malice is an element and smart money or exemplary damages are allowed. But judges have never renounced their right, as an element in the administration of the law, to set aside a verdict, either excessive in bigness or ridiculous in littleness, where the result reached shocks the understanding and cannot be fairly justified on any hypothesis except misconduct or prejudice or willful disregard of instructions. In arriving at a conclusion, however, the presumption is in favor of the good conduct of the jury and, therefore, if on the whole record the case preponderates in favor of the defendant, or is evenly balanced in the scales, or where, as in a case of assault, there was strong provocation, and where, as in case of slander, etc., there were facts tending to prove mitigation of damages, the courts have refused to interfere with nominal verdicts, although on first blush they may appear illogical. It would serve no useful purpose to collate the cases or undertake to distinguish them, for they abound in nice refinements, and, after all, each case depends upon its own merits and can not be settled off hand on a mere general rule. The various propositions asserted above may be found discussed and applied in Weinberg v. Railroad, 139 Mo. 286; Haven v. Railroad, 155 Mo. 216; Dowd v. Westinghouse Air Brake Co., 132 Mo. 579; Overholt v. Vieths, 93 Mo. 422; Leahy v. Davis, 121 Mo. 227; Watson v. Harmon, 85 Mo. 443; Gregory v. Chambers, 78 Mo. 294; Pritchard v. Hewitt, 91 Mo. 547; Boggess v. Railroad, 118 Mo. 328; Goetz v. Ambs, 22 Mo. 170; Fairgrieve v. City of Moberly, 29 Mo. App. 141; Chouquette v. Railroad, 152 Mo. 257.

“In Pritchard v. Hewitt, 91 Mo. l. c. 550 et. seq., after quoting approvingly the reasons for the general rule of non-interference from Graham and Waterman on New Trials, to the effect that, ‘The reason for holding parties so tenaciously to the damages found by the jury in personal torts is, that in cases of this class there is no scale by which the damages are to be graduated with certainty. They admit of no other test than ihe intelligence of a jury governed by a sense of justice . . . To the jury, therefore, as a favorite and almost

sacred tribunal, is committed, by unanimous consent, the exclusive task of examining the facts and circumstances, and valuing the injury and awarding compensation in damages. The law that confers on them this power and exacts of them the performance of this solemn trust, favors the presumption that they are actuated by pure motives, . . . and it is not until the result of the deliberation of the jury appears in a form calculated to shock the understanding and impress qo dubious conviction of their prejudice and passioq that courts have found themselves compelled to interpose,’ Brace, J., speaking to the point says: ‘Of course it goes without saying that actions ex delicto, wherein the damages may be measured with some degree of certainty, are not within the rule, and that those cases where the damages, under the circumstances, are such as to shock the ‘understanding,’ and induce the conviction that the- verdict was the result of either passion, prejudice, or partiality, are exceptions to this rule.’

“In Haven v. Railroad, supra, the court, nisi, set the verdict aside for inadequacy, and its action was sustained by this court. Marshall, J., discussing the matter now in hand, said: ‘In other words, where a jury has returned a verdict for nominal damages in a case where the plaintiff is not entitled to any damages, the verdict will not be set aside in the appellate court at the instance of the plaintiff.’

“When it is determined, as must be in the case at bar, that there was persuasive evidence of the negligence of respondent city, and when it is determined, as it must be, that there was little or no evidence showing a want of care on the part of the appellant, and that all the evidence in that behalf fell from her own lips and when fairly considered does not show want of due care, and when the serious character of the injuries of appellant stands confessed, as here, it follows, we'think, that the verdict of the jury in this case ought not to be attributed to a benevolent disposition on the jury’s part toward appellant in the matter of costs, and as a finding for respondent city based on the substantial evidence, but must be attributed to whim and arbitrariness and a disposition to play fast and loose with the law and the substantial rights of appellant, and should be explained alone as the product of prejudice or some kindred motive.

“Holding these views, we conclude the learned circuit judge erred in not sustaining appellant’s motion for a new trial, and therefore the cause is reversed and remanded with directions to the lower court to set aside the order overruling appellant’s motion for a new trial; to sustain that motion and grant appellant a new trial; and for further proceedings in the cause.”

The same rule is announced in the following cases: Watson v. Harmon, 85 Mo. 443; Fury v. Merriman, 45 Mo. 500; Pritchard v. Hewitt, 91 Mo. 547; Edwards v. Railway, 82 Mo. App. 585.

Viewing the facts of this case as disclosed by the uncontradicted evidence, in the light of the authorities considered, we are clearly of the opinion that the jury was actuated either by prejudice or passion, or was guilty of a mistake in computing the plaintiffs ’ damages, or that they disregarded the instructions of the court, in assessing the amount of damages the plaintiff had sustained; and it is against the plain letter and spirit of the law and should not be permitted to stand.

III. There are some other minor questions presented, but they in on manner can change the result arrived at, so we will not consider them.

For the reasons stated, the judgment is reversed and the cause remanded with directions to the circuit court to retry the case in harmony with the views herein expressed.

The foregoing opinion of Woodson, J., in Division One, is adopted as the opinion of Court in Banc.

Walker, Faris and Graves, JJ., concur; Williams, J., concurs in the result; Blair, J., dissents; Bond, G. J., not sitting.