author: VALLIANT, J.

text:
    LUCY T. FLEMING, Appellant, v. GEORGE TATUM et al.
    Division One,
    February 28, 1911.
    1. PLEADING: Alternative: Title. The statute (Sec. 1828, R. S. 1909), authorizing the statement of a fact or title in the alternative, has reference to that part of the petition which should state facts constituting the cause of action, although it is quite as important that the petition should state correctly the names of the parties. But for the plaintiff to avail himself . of the privilege given by that statute he must avow his belief that one or the other alternative is true, and his ignorance of which is true.
    2. -: -;-: -: Defendants in Tax Suit. A petition in a tax suit which names the defendants as “David Fleming, if living, or if dead, his unknown heirs or devisees,” sufficiently names the defendants. The reason for requiring plaintiff to state his ignorance as to which of two facts is constituent of his cause of action, when he pleads both in the alternative, does not apply in naming defendants when they are named as defendants were in that case, and section 1828, Revised Statutes 1909, does not apply.
    3. -: Unknown Heirs and Interests. A petition in a tax suit, alleging, under oath, that “if the said David Fleming be dead, plaintiff verily believes there are persons interested in the subject-matter of this suit whose names cannot be inserted herein, because they are unknown to him, and that the interest ■of such persons, and how derived, so far as the knowledge of affiant extends, are truly described as follows, viz: That if said David Fleming be dead, his unknown heirs or devisees ■claim, or might claim, an interest' or right in said land by descent,- inheritance, devise or operation of law,” sufficiently states the interests of the unknown parties and how derived, under Sec. 1776, R. S. 1909.
    4. TAX SUIT: Order of Publication Antedating Petition. The - order of publication in the tax suit was dated June 7th, the petition filed June 8th, and the first publication was June 8th, and it is contended the order of publication was made before the petition was filed. Held, that the slight discrepancies in the dates cannot be held to outweigh this solemn recital in the record order of publication, namely: “At this day comes the plaintiff herein, by her attorney, before the undersigned, clerk of- the circuit court of said county, in vacation, and files her petition, alleging among other things,” etc.

      5. -: Publication: Four Successive Weeks. The order of publication was published in a weekly newspaper, and the publisher’s affidavit says it was published for four weeks successively, and the number of the issue and the volume of the newspaper are stated thus: “In Number 16 of Volume 26, dated June 8, 1900; in Number 17 of Volume 26, dated June 22, 1900; in Number 18 of Volume 26, dated June 23, 1900; in Number 19 of Volume 26, dated June. 29, 1900.” Held, that clerical errors in the dates June 22d and 23d, which should have been June 15th and 22d, were corrected by the other facts in evidence, and those facts are not overthrown by the dates which are inconsistent with them and apparently contradictory of each other; and the circuit court had jurisdiction to try this issue of fact upon which its further jurisdiction depended, and the presumption is that it did so, and that on proof offered found that the notice had been published once a week for four successive weeks, beginning with June 8th and ending with June 29th.
    6. ACTION AT LAW: Converted Into Equitable Action by Answer; In an action at law, if the • defendant pleads an equitable defense going to the life of the plaintiff’s cause of action and prays equitable relief, the action is converted into a suit in equity. But where plaintiff in the suit to quiet title, brought ejectment against the purchaser at the execution sale of the land under a judgment for taxes, i the filing of an answer in that suit, which was first a general denial, and next set up the tax deed and judgment as the foundation of defendant’s title, and the filing of a reply in which it was alleged the pretended deed was void, did not convert that ejectment suit into an equitable action, and a judgment for defendant therein cannot be set up by defendant in the suit to quiet title as res adjudicata. Equity relieves against a deed • valid on its face but voidable for some fact specially pleaded, but if a deed is void its condemnation is on its face, or on the face of the record out of which it arises, and then a court of law is competent to pass judgment upon it.
    Appeal from Newton Circuit Court. — How. F. G. Johnston, Judge.
    Reversed and remanded {with directions).

      Hamlin <& Seawell for- appellant.
    (1) The petition must contain the names of the parties plaintiff and defendant. R. S. 1899, sec. 592.. The petition does not definitely state any one as defendant. The title being a part of the petition must be considered with the entire petition, and where a pleading is in the alternative, each of the alternatives must state a legal cause of action, or defence, and if either of the statements is insufficient in law the entire plea is defective. Plewitt v. Truitt, 23 Mo. App. 443. If David Fleming was dead at the time the tax suit was filed, then the order of publication should have been to the “unknown heirs or devisees.” If he was dead or alive, the notice of publication was not service on the heirs or devisees. B. S. 1899, sec. 575. The collector in the tax suit should have “declared his belief that Fleming was either dead or living, and his ignorance whether it be one or the other.” B. S. 1899, sec. 626. The allegations, “if dead, or if living his heirs or devisees,” contradict each other in the petition and in the order of publication. And for that reason there was no allegation in the petition or affidavit filed in the case which authorized, and upon which to base, the order of publication. Hinkle v. Lovelace, 204 Mo. 220. An affidavit is insufficient which states in the alternative the grounds on which relief is sought. Hinkle v. Lovelace, 204 Mo. 220; 2 Cyc. 22, par. 3. The alternative allegation was a jurisdictional matter. Hinkle v. Lovelace, supra. Neither the petition nor order of publication alleges the death of David Fleming, nor the interest of the heirs or devisees, nor how or in what manner derived, all of which must appear in the petition and in the order of publication to confer jurisdiction upon the court. Meyers v. McBay, 114 Mo. 377. Before the court had jurisdiction or the clerk authority to issue the order of publication, the petition should have affirmatively averred that David Fleming was either dead or living. They nowhere state the belief of plaintiff as to either. If David Fleming was living and was a non-resident, then the petition need not be verified, but if he was dead, and left unknown heirs or ..devisees, the petition must be verified.. Elting v. Gould, 96 Mo. 535; Meyers v. McRay, 11 Mo. 383; Rohrer v. Oder, 124 Mo. 24. If the judgment in the tax suit was rendered upon a void publication, and the petition did not contain jurisdictional facts sufficient to confer jurisdiction upon the court, then the judgment was void, and this action can be maintained. Stark v. Kirchgraber, 186 Mo. 633; Davis v. Montgomery, 205 Mo. 283'. (2) Where constructive service is authorized instead of personal, there must be a strict compliance with the statutory requirement. Meyers v. McRay, 114 Mo. 377; Parker v. Baton, 1'72 Mo. 85; Hinkle v. Lovelace, 204 Mo. 208. The record shows that the petition in the tax suit was filed on the 8th day of June, 1900, and the clerk made an order of record directing an order of publication for the defendants on the 7th day of June. He had no authority to make, said order because a petition had not been filed in his office on June 7th. R. S. 1899', sec. 575; Stewart v. Allison, 150 Mo. 346. There are three sections under our code of civil procedure authorizing service by publication of notice of the commencement of the suit. R. S. 1899, secs. 575, 577 and 580. The publication in the tax suit endeavored to cover the requirements of sections 575 and 580, but the requirements of each section are in conflict with the other. Section 575, R. S. 1899, applies to living non-resident defendants, section 580 applies to unknown defendants. If the petition and order of publication in the tax suit had stated that David Fleming was dead, and had left unknown heirs or devisees, and set out their interest and how derived, as prescribed by the statute, and was verified, then the court would probably have had jurisdiction over the res and this plaintiff. The clerk in vacation must have the petition on file in his office, containing facts sufficient to confer jurisdiction, at the time he makes the order of publication. In this case the order of publication recites that it was made on the 7th day of June, 1900, and the petition was filed on the 8th day of June, 1900; therefore there was no petition on file at the time the order was' made. “Upon the filing of sucia petition or affidavit, the order of publication must be made.” R. S. 1899, sec. 575-. (3) The statute requires the publication to be published once a week for four weeks successively. R. S. 1899, sec. 581. The notice was not published four successive weeks; it was published as follows: June 8th, 22d, 23d, 29th, 1900, being only twenty-one days. “When the statute requires four weeks’ publication of such notices, it does not mean twenty-four days, or any less number than twenty-eight.” Young v. Downey, 150 Mo. 330; State v. Brown, 130 Mo. App. 214.

      O. R. Puckett and Benton S Ruark for respondents.
    (1) The tax petition and affidavit used the exact language of the statute, to-wit: “He verily believes there are persons interested in the subject-matter of this suit whose names cannot be inserted herein, because they are unknown to him, and that the interests of such persons, and how derived, so far as the knowledge of affiant extends, aré truly described as follows,” etc. And it is stated under plaintiff’s oath that the petition ‘ ‘ describes the interests of the unknown persons who are interested in the subject-matter, and how their interests were derived, so far as the knowledge of affiant extends.” There are no decisions under which the petition and affidavit in the tax suit, have been held bad. The question must be settled by Sec. 580, R. S. 1899. The tax suit was against the unknown owners of the land described. This is expressly authorized by the statute; the description of the interests of the unknown owners, how derived, etc., is not required to be given more fully than is known, for obvious reasons, and in this case plaintiff states, by exclusion and necessary implication, that plaintiff does not know whether David Fleming be living or dead, and if dead, whether he died testate or intestate, or who or how many were his heirs or devisees.. The law presumes plaintiff knew that if David Fleming was dead, a judgment against him would be a nullity, and that if living, he had no heirs or devisees. That he was the record owner of the land at the time the tax suit was brought is not denied, and that is all the information plaintiff had. The appellant comes and identifies herself as a devisee of David Fleming. She can only raise the question as to whether she had constructive notice; not whether David Fleming, had he been living when the suit was brought, had constructive service under the allegation that he was a non-resident, of the State, or, if he had previously died intestate,, whether his heirs had constructive notice as the “unknown heirs of David Fleming.” This does not concern appellant. Had appellant appeared on the trial of the tax suit and identified herself as a devisee of David Fleming, unknown at the time the suit was brought, as here admitted by her, a plea of misjoinder ..might have been successfully interposed, or that all other persons named and described were unnecessary parties to a complete determination of the cause. The joinder of an unnecessary party or an improper party is held to be error; but held not to he an error affecting the substantia] rights of the parties, and so far from being void, that no judgment shall be reversed by reason of such error or defect. Mann v. Doerr, 222 Mo. 15; R. S. 1899, secs. 659 and 865. Defect of parties defendant is waived by default or when not raised by demurrer or answer. R. S. 1899, sec. 602; Scott Go. v. Hombs, 127 Mo. 392; Hudson v. Wright, 204 Mo. 424. “Nor was the jurisdiction of the court affected by the fact that a deceased former owner, who by a recorded deed had conveyed the property to another, was made a defendant.” Sanzenbacher v. Santhuff, 220 Mo. 283. A judgment against an unknown devisee is good. Wall v. Holladay-Klotz Land and Lumber Co., 175 Mo. 406'. A tax deed is prima facie, evidence of title. R. S. 1899, sec. 9305. A tax deed, conveying the interest of unknown parties, is valid on its face. Wall v. Land Co., 175 Mo. 406. A tax deed, valid on its face, is unassailable, without proof that it has been of record for less than three years. R. S. 1909, sec. 11506.
   VALLIANT, J.

This is a suit to quiet title 'under section 650, Revised Statutes 1899. The land described in the petition is the north half of section 30, township 23, range 33, but the land in dispute is really only the northwest quarter of that section, that at least is the only part of the section to which the defendants introduced any proof of title. That mistake runs through the pleadings and final judgment which decrees absolute title in defendant Griffin to the whole north half of that section. The mistake is plain on the face of the record.

The defendants’ title arises out of a sheriff’s sale under a tax judgment. The petition under which the tax judgment was rendered ran against the north half of the section and the judgment condemned the whole to be sold, but at the sale, the sheriff, as in duty bound, offered the land in the small legal subdivisions of 40 acres each, and when he had sold four forties he realized enough money to pay the taxes and costs on the whole half section, therefore he did not sell the northeast quarter, but that remained to the owner. The purchaser at the sheriff’s sale sold the west half of the northwest quarter to F. & T. J. Friend and the est half to Price. These titles came by mesne conveyances to Tatum, who conveyed the same to defendant Griffin, taking a mortgage back for the purchase money. Tliat is the title claimed by the defendants Griffin and Tatum in this suit.

It was admitted at the trial that the half section of land described in the petition belonged to one David Fleming in his lifetime, who died in 1898 testate, leaving the plaintiff herein, Lucy Fleming, his wife, his sole devisee. She owns the land now if the title did not pass from her at the sheriff’s sale under the tax judgment in January, 1901.

The plaintiff now' contends that that sale was void because the petition on which the tax judgment was founded does not state any one as the defendant. The parties are named in the caption of the petition as. follows:

“The State of Missouri at the relation and to the use of A. W. Noel, Collector of the Revenue-in and for the county of McDonald, in the-State of Missouri, Plaintiff, vs. David Fleming, if living, or if dead, his unknown • heirs or devisees, Defendant.”

The sufficiency of the petition is not challenged except in one other respect which will be noticed hereinafter.

On filing the petition and affidavit attached the clerk in vacation made an order of publication which was published. The style-of the ease in the- order of publication was the same as that in the caption of the-petition as above shown; in all other respects the order was in due form.

While F. and T. J. Friend held the title they acquired to the west half of the northwest quarter of' this section by deed from the purchaser at the sheriff’s sale, anch Price held the like title to the east half of that quarter, the plaintiff in this suit brought twoejectment suits, one against the Friends and the other, against Price, to recover the parts held by them respectively. The defendants in those two suits filed answers in which they set up as the foundation of their titles the sheriff’s deed above mentioned, and deeds from the purchaser to them, and the plaintiff filed a reply saying that “the pretended deeds held by them are void. ’ ’ The suit against the Friends went to final judgment in their favor, and the plaintiff dismissed the suit against Price. In the case at bar defendants plead the judgment in the Friends suit as res adjudicator, saying that that suit was by the answer converted into a suit in.equity in which the validity 'of the sheriff’s deed was in issue and adjudged. The record in that case was admitted in evidence on the trial in this case over the plaintiff’s objection.

As already said the judgment was for the defendants, vesting the whole half' section in defendant Griffin, and the plaintiff appealed.

I. Appellant’s main point is that “the petition does not definitely state any one as defendant.” Appellant in her brief says that it should have stated either that David Fleming was dead, in which event the notice should have been to the “unknown heirs and devisees of David Fleming deceased,” or the pleader should have ‘‘ declared his belief that Fleming was either dead or living and his ignorance whether it be one or the other,” under the terms of section 626, Revised Statutes 1899, now section 1828, Revised Statutes 1909. That section is: “Either party may allege any fact or title alternatively, declaring his belief of one alternative or the other, and his ignorance whether it be the one or the other.” The point insisted on is that the plaintiff in his petition should have stated his ignorance of the fact whether Fleming was living or dead.

Section 592, Revised Statutes 1899, now section 1794, Revised Statutes 1909, specifies what the petition shall contain, and divides it into three parts: first, the title, including the names of the parties; second, a plain and concise statement of facts constituting the cause of action; third, the prayer for relief. The section authorizing the statement of a fact or title in the alternative has reference to that part of the petition which should state facts constituting the cause of action, although it is quite as important that the petition should state correctly the names of the parties. The main object in pleading is to state with certainty and truth the facts relied on. If a party knows what the fact is, it is his duty to plead it with certainty, and if he knows which one of two facts is correct, he has no right to plead both in the alternative. Therefore, to avail himself of the privilege given in that statute he must avow his belief that one or the other is true, and his ignorance as to which is true. But that rule of pleading could hardly in its nature apply to that part of the petition which states the names of the parties. For example, A and B could not sue as plaintiffs and say that the defendant is indebted to one or the other of them, but which one they do not know; nor could a plaintiff sue two defendants and say that one or the other of them owes him' the obligation, but which one he does not know. But when a plaintiff brings a suit m rem, for example, to establish the State’s claim for taxes on land, it is not inconsistent to name as defendants the record owner of the land, if he be living, or his heirs and devisees, if he be dead, and they be unknown, because the obligation descends with the land. In such case if the record title is in the name of a person who is not known to plaintiff, he may bring his suit naming the defendants in the alternative, that is, naming the person if living, or his unknown heirs or devisees if he is dead and they are unknown. That is what the plaintiff did in this case, but he failed to say that he did not know whether the man was living or dead, and for that failure the plaintiff in this suit now says the court did not acquire jurisdiction over’ her as devisee of the deceased former owner of. the land.

The reason for requiring a party to state his ignorance as to which of two facts is constituent of bis cause of action, when he p.leads both in the alternative, does not apply in naming the defendants when they are named as in this case, and the statute, section 626, Revised Statutes 1899, now section 1828, Revised Statutes 1909, does not apply; therefore before we can condemn the pleading for failing to state the pleader’s ignorance of that fact we must find some reason for it outside of that statute.

If David Fleming had been living at the date of filing the petition, the publication would have been notice to him. He could not have been misled by the reference to his unknown heirs in cáse of his death. And if he was dead at the time, how could the fact that the notice indicated an' uncertainty as to his being alive or dead mislead his heirs or devisees? If the petition hád named as defendants “the unknown heirs or devisees of David Fleming deceased,” it is not questioned but it would be sufficient. ’What then is the material difference between that form and “the unknown heirs or devisees of David Fleming, if he be dead?”. Our attention has not been called, to any-case where the point now contended for by appellant has been presented to this court for decision. Considering it as a proposition of first impression we are unable to find any good reason for sustaining appellant’s position on this point. We hold that the name and description of the defendants, “David Fleming, if living, or, if dead, his unknown-heirs or devisees,” as contained in the petition and in the order of publication, are sufficient.

II. Section 580, Revised Statutes 1899, now section 1776, Revised Statutes 1909, authorizing notice by publication against unknown persons, requires the plaintiff to state, verified by affidavit, that there are or he believes there are persons interested in or who claim to be interested in the subject-matter of the petition whose names he cannot insert therein because they are unknown to him, and to describe the claims or interests therein of such unknown parties, and how such claims or interests are derived, so far as known to him. Appellant contends that this petition fails to meet that requirement.

The petition contains the following clause:

“A. W. Noel, collector aforesaid, also alleges under oath that if said David Fleming be dead, he verily believes there are persons interested in the subject-matter of this suit whose names cannot be inserted herein, because they are unknown to him, and that the interest of such persons and how derived, so far as the knowledge of affiant extends, are truly described as follows, viz: That if said David Fleming be dead, his unknown heirs or devisees claim, or might claim, an interest or right in said land by descent, inheritance, devise or operation of law. That David Fleming, if living, is a non-resident of the State of Missouri.”

Attached to the petition was an affidavit as the statute requires.

We hold that the interests of the unknown parties and how derived as stated in' the petition are sufficiently stated.

TTT. The order of publication in the tax suit is dated June 7,1900, the petition was filed June 8th and the first publication was June 8th. The point is made that the order of publication was made before the petition was filed and is therefore illegal.

The order of publication recites: “At this day comes the plaintiff herein, by her attorney, before the undersigned clerk of the circuit court of said county, in vacation, and files her petition, alleging among other things,” etc., etc. The slight discrepancy in the dates cannot be held to outweigh the solemn declaration in the record. It sufficiently appears that the petition was on file when the order of publication was made.

IV. The statute, section 581, Revised Statutes 1899, now section 1777, Revised Statutes 1909, requires the notice to be published once a week for four weeks successively. Appellant contends that this requirement was not complied with, because the proof of publication, as appellant construes it, shows only three weeks’ publication. The proof shows that the publication was made in a weekly newspaper, the affidavit of the publisher says it was published for four weeks successively; the number of the issue and the volume of the newspaper is stated thus in the proof:

“In Number 16 of Volume 26, dated June 8, 1900.
“In Number 17 of Volume 26, dated June 22,1900.
“In Number 18 of Volume 26, dated June 23,1900.
“In Number 19 of Volume 26, dated June 29, 1900. ”

Here we see an evident mistake in the dates. Bearing in mind that it was a weekly newspaper, and each issue having its number in the volume, we are given four regular weekly issues, numbers 16, 17, 18 and 19, all of volume 26. The first date is given as June 8th, the last as June 29th; from the 8th to the 29th are four successive weeks. If the dates had been correctly given they would have been, 8th, 15th, 22d, and 29th, but the way they are given is: 8th, 22d, 23d and 29th; that is, two weeks between the first and second, one day between the second and third, and one week less one day between the third and fourth publications. We are satisfied that the two dates 22d and 23d are clerical errors, but those errors are corrected by the other facts in evidence: When the publisher states in his affidavit that it was a weekly newspaper, that the publication was made for four weeks successively, and gives the numbers of the issues, 'those statements are not overthrown by the dates which are inconsistent with them and apparently contradictory of each other. The circuit court had jurisdiction to try the issue of fact on which its further jurisdiction of the case depended, and the presumption is that it did so, and that on the proof offered it found that the notice had been published once a week for four weeks succesively. We think that finding was justified.

V. Over the plaintiff’s objection the court admitted in evidence the record in the ejectment suit of Fleming against Friend. That ruling seems to have been based on the idea that the answer in the ejectment suit converted it into a suit in equity in which the validity of the tax suit was involved. But that was a misapprehension. In an action at law if the defendant pleads an equitable defense going to the life of the plaintiff’s cause of action and prays equitable relief, the action is converted into a suit in equity. For a full discussion of that subject we refer to Hutchinson v. Patterson, 226 Mo. 174. But there was nothing in the pleadings in the suit of Fleming v. Friend to convert it into a suit in equity. The petition was for an action in ejectment, the answer was first, a general denial, then it set out affirmatively that the land had been sold under special execution of a judgment for taxes and that the purchaser at that sale had conveyed the land to defendants. The answer concluded as follows: “That he (defendant) is now in possession of said land as owner in fee simple absolute thereof. ’ ’ That was only a special plea setting up a legal title which could have just as well been introduced in evidence under the general denial. The reply was: “Now comes the plaintiff and for replication denies that part of defendant’s answer in that defendants hold any title to the land in controversy derived from, any source whatever. That the pretended deeds held by them are void.”.

There was nothing in the answer indicating that the tax title under which defendants held needed any aid of a court of equity to render it valid,, but it was stated as a valid legal title. And there was no fact stated in the reply which appealed to equity for relief against the asserted legal title. The reply was a general denial of title in defendants .from any source, and an averment that their pretended deeds were void. Equity relieves against a deed valid on its face but voidable for some fact specially pleaded, but if a deed is void its condemnation is on its face, or on the face of the record out of which it arises, and a court of law is competent to pass judgment on it. In the ejectment suit the defendants could under their general denial have introduced in evidence their sheriff’s deed, and that, together with the de'ed from the purchaser to them, would have made their prima facie case; then the plaintiff in rebuttal could have introduced the record in the tax suit out of which the sheriff’s deed arose, and if that record on its face showed the judgment to be invalid, the defendant’s prima facie case would have been overthrown. Ordinarily the judgment in a suit in ejectment is not res adjudicata of the title and there was nothing in that case to except it from the general rule; it was error, therefore, to admit the record in evidence, but it was unnecessary to the establishment of the defendants’ defense, because their title derived from the sheriff’s deed under execution of the judgment in the tax suit was valid and gave them a good title. Therefore the plaintiff suffered no injury by the introduction of the record in the ejectment suit.

We find no error of which the plaintiff can complain except the evident mistake pointed out in the first part of this opinion whereby the title to the whole north half of section 30, township 23, range 33, is vested by the decree in the defendant Griffin, whereas his only claim is the northwest quarter of that section and he is entitled to that only.

The judgment is reverséd and the cause remanded to the circuit court with directions to enter a decree vesting the northeast quarter of the section in question in the plaintiff and the northwest quarter thereof in defendant Griffin subject to the mortgage of defendant Tatum.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    NORTH ST. LOUIS GYMNASTIC SOCIETY (NORD ST. LOUIS TURNVEREIN) v. JAMES HAGERMAN, Jr., Collector of the City of St. Louis, Appellant.
    Division One,
    February 28, 1911.
    1. RES ADJUDICATA: Wrongful Decision. It matters not •whether the former adjudication was right or wrong,, it is conclusive between the parties in all subsequent proceedings if the same point is directly in issue and the doctrine of res •adjudicate, applies. Nor does it matter that subsequent decisions may have somewhat modified the former adjudication — as to the same parties and the same issues it is conclusive.
    2. TAXATION: Exemption: Change in Constitution: Contract. A provision in the charter of a benevolent, charitable or educational corporation, granted by the General Assembly in 1864, exempting its properties from taxation so long as they are used for the charter purposes, valid under the Constitution in force at the date it was granted, is in the nature of a contract, and once granted cannot be withdrawn by a subsequent legislative act or Constitution.
    3. RES ADJUDICATA: Tax Judgment. Res adjudicata applies to tax judgments the same as to other judgments. If the former adjudication held the property of a society to be exempt from taxation, that holding may be invoked as a bar to a subsequent suit for taxes, just as res adjudicata could be invoked in any other kind of suit.
    4. -:-: Different Officers. The fact that the collector about to enforce the taxbill in the present suit was not the same collector who sought to enforce the taxbill against the same society in the former suit, does not destroy the effect of the thing adjudicated then. In contemplation of law, he is the same officer.
    5. -: -: Different Use. Where the identical claim of exemption from taxation, on the same property, under the same charter provision, was adjudicated in the former suit, that adjudication bars any further claim for taxes. Where it was then held that the renting of certain parts of the educational society’s property for mercantile and saloon purposes, and the application of the rent money to society charter purposes, did not destroy the exemption, that will be the ruling again, although certain parts are no longer rented for stores, but a more profitable use is made of them as a hall and bowling alley, for there is no difference in principle in the use.
    6. -: -: -: Refunding Subscriptions to Shareholders. The mere fact that the educational corporation paid to some of its shareholders, by way of redeeming the stock they had subscribed for, the amount they had- paid for it, does not destroy the exemption of its property from taxation, or destroy the identity of the thing in issue in the former case adjudging that its properties, under its charter, were not subject to taxation. That was merely allowing them to retire from the corporation, and under the agreed facts of this case, was somewhat in the nature of paying an indebtedness in the time and way set forth in the certificates; and whether or not such a payment was legal is not for decision in determining, whether or not the corporation’s properties are taxable.
    Appeal from St. Louis City Circuit Court. — Eon. Jos. E. Withrow, Judge.
    Affirmed.

      Johnson, Houts, Marlatt & Hawes for appellant.
    (1) An exemption from taxation “so long as property is used exclusively for educational purposes” does not apply where property is leased and rented to the public for hire. Fitterer v. Crawford, 157 Mo. 64; Adelphia Lodge v. Crawford, 157 Mo. 358; State ex rel. v. Macgurn, 187 Mo. 242; State ex rel. v. Johnston, 214 Mo. 668. (2) The question of the right of plaintiff to exemption of the property in question from taxation in 1906, is not rendered res adjudicata by the decision of the ease of North St. Louis G-ymnastie Society v. Hudson, 85 Mo. 32. (a) The weight of authority and of reason is to the effect that an adjudication with respect to the validity of a tax for one year does not'render the question of the validity of taxes for another year res ad judicata; it is against public policy to apply the estoppel of a judgment against the sovereign in the exercise of its taxing powers.. Railroad v. People, 46 Mich. 193; Bank v. Memphis, 101 Tenn. 167; Adams v. Railroad, 77 Miss. 266; Davenport v. Railroad, 38 Iowa 640; State ex rel. v. Enloe, 121 Tenn. 378; City v. Commonwealth, 106 Ky. 447; Georgia R. & B. Co. v. Wright, 124 Ga. 606; State v. Sugar Refining Co., 108 La. 603. (b) The fact and circumstances as shown by the record in the two cases are so different that the judgment in the former ease cannot be urged as an estoppel in the case at bar.

      Julius T. Muench for respondent.
    (1) The property affected by the taxes in controversy in this suit is exempt from taxation under the provisions of respondent’s charter. Gymnastic Soc. v. Hudson, 85 Mo. 32; Same Case, 12 Mo. App. 342. (2) The question of the liability of the respondent company’s property to taxation, under the terms of its charter, having been previously concluded by the judgment in the case of North St. Louis Gymnastic Society v. Hudson, 85 Mo. 32, under circumstances and conditions practically identical with those in the case at bar, the question of such taxability is res ad judicata as to the points involved in this case. Exposition Driving Park v. Kansas City, 174 Mo. 425; New Orleans v. Bank, 167 H. S. 371; Baldwin v. Maryland, 179 U. S. 220; Chouteau v. Gibson, 76 Mo. 47. (3) The facts and circumstances upon which the decision in the former case was based are, with the exception of some unimportant details, identical with those existing at the time the taxes in controversy in this suit were assessed, and the property is the same as that involved in the former adjudication.
   LAMM, J.

Plaintiff sues in equity to remove the cloud on the title to certain of its real estate arising from a taxbill and a tax assessment for State, school and city taxes for the year 1906, and to cancel the tax-bill and enjoin the collector from enforcing the same.

. The bill runs on the theory, first, that under its charter its real estate is exempt from taxation; second, that the question is no longer open but is res judicata.

Prom a decree in plaintiff’s favor, defendant comes up by appeal.

The pleadings are not challenged and we pass them by with the remark that they join issue on the questions of exemption and former adjudication, and are broad enough to make pertinent an agreed statement of facts on which the cause was submitted below. The substance of which is:

Plaintiff was incorporated under the name and style of “Nord St. Louis Turnschule und Kinder Garten” (followed by the legislative translation of “North St. Louis Gymnastic School and Infant Garden,)” by a special act of the General Assembly in 1864 — at a time when special legislation was not unconstitutional. Its charter purpose was “educating children in gymnastics and the elementary branches of education.” It had warrant of authority to hold and enjoy so much property, real, personal and mixed, as may be necessary to conduct its affairs. Section 3 of its charter authorizes its board of directors to employ; engage and discharge necessary professors, teachers, nurses, servants and agents, and to issue $50,000' in stock, each share for $25, but subscribers might take a fraction of a share. By section 4, the board was authorized to receive voluntary contributions from subscribers and to charge a reasonable tuition fee. Section 5 reads: “Personal and real property of this institute shall be exempt from taxation as long as said property is used only for purposes of education; provided the value thereof does not exceed $50,000. ’’

In 1874 its name was changed by an act of the General Assembly and made to read as it does now. In 1881, an attempt was made to tax its property, then amounting to $7610 in real estate and $500- in chattels. It then owned lots 7 and 8 and the west 8 feet of lot 9 in city block 1174 on Salisbury Street. The then collector of revenue, Hudson, having a tax-bill in hand and being about to enforce it, plaintiff sued in equity — the life of its bill being to enjoin collection on the ground its property was exempt by force of its charter terms. Answer was filed in that case and it was submitted (like this one) on an agreed statement of facts, which (omitting caption) reads:

“The facts in this case, for the purposes of a judicial determination, are agreed to be (in addition to the documentary evidence, viz., taxbill and charters of plaintiff, herewith also submitted):
“That plaintiff is the owner of the real and personal property described in said taxbill; that it carries on a gymnastic school as averred in the petition; that the personal property by it owned is devoted wholly to the conduct and purposes of such school; that upon the real estate described in the petition, plaintiff erected a two-story brick building, paying for about one-lialf thereof out of sums 'realized on shares of stock issued pursuant to its charter, as also some other means, and the other half then remaining as a debt of said society; that the entire second floor, and a large part of the first floor of said building are used and occupied in the conduct of said school, and that two corner rooms on said first floor are let by plaintiff at a monthly rental paid to it; one of said rooms for a saloon and the-other for a store; which said monthly rental so received is used by plaintiff in defraying the legitimate expenses of conducting said school, paying salary of teachers (so far as the same are not met by voluntary contributions of members) ; in keeping said building in repair; and in discharging the remaining indebtedness of plaintiff, incurred in building as aforesaid.
“That plaintiff has not devoted any money received by it to any purpose other than above designated. That the taxbill in question has been demanded as in the petition alleged.
“The above facts are to be considered by the court subject to defendant’s objection that under the allegations of the petition, plaintiff is not entitled to any relief in the premises; in other words, that the.petition does not state a cause of action and no testimony can be received to support it.”

In that case a decree went for plaintiff in the circuit court. Defendant appealed to the St. Louis Court of Appeals, where the decree was affirmed (12 Mo. App. 342). Under the then practice, an appeal was taken to this court, and the decree was finally affirmed (85 Mo. 32). Such was the end of the first suit. (Nota bene: While the agreed statement of facts in the case at bar does not directly say so, yet the briefs proceed on the theory, and read between the lines the statement means, we think, that plaintiff acquired property and organized its school at once on its corporate birth in 1864; that no attempt to tax its property was made before 1881, and that after the first suit was determined in its favor no further attempt was made until in 1905-6. The case may also proceed on the theory that only a part of the capital stock was taken and that the original buildings and the new gymnasium were largely constructed by interest-bearing loans.) In 1905, plaintiff still owned the Salisbury lots, but at some time during the quarter of a century between the first attempt to tax and the last, it acquired lots 5 and 6 in the same city block on Mallinckrodt Street. These two properties were adjacent, but separated by an alley. At some time after the purchase of the Mallinckrodt lots, plaintiff erected a gymnasium on the latter and connected the same with the old buildings on the Salisbury lots by a covered passage over the alley — making all its buildings usable as one. It is agreed that no part of the Mallinckrodt property was income-producing or was rented out, but the whole thereof was used by plaintiff for charter purposes. Defendant has no taxbill against the new property, nor were any taxes imposed thereon. However, in 1905, an assessment was made and taxes imposed against the Salisbury lots, to come due in 1906, and the taxbill is in the hands of defendant, ex officio, he is about to enforce it and will do so unless restrained by legal process. At this point (because of a contention raised) it may be well to reproduce more of the agreed statement of facts in haec verba, viz.:

“On June 1,1905, and for a long time prior thereto, the buildings on lots 7 and 8 and the western eight feet of lot 9, in city block 1174, consisted of a group of buildings, partly two-story and basement, and partly three stories in height. The saloon on the ground floor at the corner., with the living rooms adjoining it, were rented to a man, for the sum of fifty dollars per month, whose duty it was, as part of the consideration for his occupancy of the premises, to keep all parts of the plaintiff association’s premises in proper order and to hire all help necessary for this purpose; the other room on the first floor of the principal building at the corner was occupied by the plaintiff association as a club or assembly room, and the second floor of the principal corner building consisted of a large entertainment hall, with stage, dressing rooms, bar and retiring rooms adjoining, used by the society for the purpose of lectures to its members, in accordance with the objects for which it was formed, for giving gymnastic exhibitions, for public contests in declamation and for musical, dramatic and other entertainments by its members. This hall, with the rooms adjacent, was on occasions rented out to clubs or other social organizations for dances, fairs, banquets and other entertainments for hire, and a considerable income received therefrom; the basement of the main building contained a bowling alley, and the first floor of the three-story part of the original group of buildings on lots 7 and 8 and the western eight feet of lot 9' billiard and pool tables, used by the members of the society and by auxiliary clubs and societies closely allied with the society, who paid a regular rental for their use; the third floor of this three-story part of the main building was occupied by a dining hall and kitchen, used in connection with entertainments given by the members of plaintiff association and also, like the large hall, rented to others for hire; the second floor of the three-story part of the main building was occupied by the retiring rooms and bar adjacent to the large entertainment hall hereinbefore referred to. ’ ’

It was further agreed that the rent from “Entertainment hall, including the saloon and living rooms” in the year .preceding March 31, 1905, was $4,915.36; from the “banquet hall” on the third floor, $201.88; from the bowling alley in the basement, $147.90; and that an income at that rate was coming in on June 1, 1905. . Outside of the saloon and adjoining living rooms in the Salisbury property, no part of the buildings thereon was arranged for mercantile purposes. To the contrary, it was arranged and used only for purposes incident to the objects of a club or social organization. In fact, the rooms occupied by stores in 1881 were no longer so used on June 1, 1905, and no part of the premises were rented out other than for “dances, entertainments, fairs, public lectures, banquets, and similar undertakings of an educational or social nature.” The charter provisions pertinent remained the same in 1905 as in 1881. Plaintiff was still conducting a gymnasium and school with a large number of pupils and maintained an instructor to teach them and a department devoted to the mental training of its members and their children. It was further agreed that the conduct of such gymnasium, and school of mental training, was the principal object of the'association. No dividends on the stock had ever been paid' and under the terms of the subscription none could be paid. Further, that all the moneys received from all sources whatever have been applied to the “erection, alteration and repairs of its buildings, the purchase of equipments, the payment of salaries of its instructors, the payment of money borrowed, and other expenses necessary in the maintenance of the institution.” Prom its start to June, 1905 (say, in 45 years), $10,000 has been repaid to subscribers out of plaintiff’s income. This was paid to shareholders on account of what they had paid in for stock. We infer such payments were in the way of redeeming stock-each certificate reading, inter alia-. “ ... and payable to the holder at such time and such sums as the board of directors of the society may order and declare.” — no stockholder had ever received more than the face of his share. It was further agreed that the tuition of pupils and the voluntary dues of members were “wholly inadequate for the purpose of erecting the buildings occupied by the association or paying interest on the outside capital invested therein and supplying the association with proper equipment and appliances and paying the salaries of instructors and other expenses of maintenance of the building, lighting and heating the same and expenses incidental to the object for which the association was formed.” Plaintiff’s property on the first day of June, 1905, did not exceed $50,000 in value. The outside capital borrowed at the outset and tbe debt tberefor existing at the time of the first suit does not appear further than relatively, viz., one-half of the cost. The amount of the loan at the time of the second suit was $11,000. As we gather, it had been reduced to that amount by the payment of $2500 the year preceding.

On the foregoing record, learned counsel for plaintiff plants himself on two propositions: First. The property is exempt by virtue of tbe charter. Second. The question of exemption is not an open one, but by virtue of the former suit and judgment it passed into a matter adjudicated. Contra, learned counsel for defendant plant themselves on, first, the proposition that the doctrine of transit in rem 'judicatam on principle does not apply to tax judgments, and, second, if it be held to apply, then in strict fact there has been a material change in conditions which takes this case out of the rule; and third, that under its charter plaintiff’s Salisbury store lots are not exempt.

Such are the propositions of fact and law held in judgment.

Our conclusion is the judgment must be affirmed. This, because:

(a). As pointed out, in the evolution of their argument counsel present the question whether under its charter and tbe facts of this record plaintiff’s property is exempt from taxation. Plaintiff’s affirm, defendant’s deny. But that question merges itself into the larger one of res judicata. If the first adjudication rises to the mark of res judicata, and the doctrine of res judicata applies to the judgment, we need not consider whether the decision was right or wrong; for right or wrong, it abides and must be given force and effect in any case between the same parties where the very thing adjudged is again in issue. Assuming res judicata applicable in full vigor, its potency is remarkable. It, in effect, makes of white, black; of black, white; of the crooked, straight; of the straight, crooked. Says Bouvier (1 Bouv., Inst., sec. 840), “For it is a maxim that res judicata, or the decision of a legal or equitable issue by a competent jurisdiction is a complete bar to any future action: res judicata facit ex albo nigrum, ex nigro album, ex curvo rectum, ex recto curvum.” The judgment is not conclusive- as to matters only collaterally in question, but when pleaded in bar or introduced as evidence is conclusive between the parties if the same point is directly in issue. [Baumhoff v. Railroad, 205 Mo. l. c. 262, et seq.] Because of a disposition to be made of the larger question suggested, we need not pursue the matter. We leave it with some observations, viz.:

The doctrine of North St. Louis Gymnastic Society v. Hudson, 85 Mo. 32 (the case affirming the first judgment), may have been modified by our later decisions. It was ruled in that case that renting a part of the premises to produce an income, so long as the income was used for the purpose of education, left the property of this plaintiff still exempt from taxation under its charter provision, exempting its property “so long as it is used only for the purposes of education.” In the light of our recent decisions, we might not rule that question the same way at this day. Witness: Fitterer v. Crawford, 157 Mo. 51; Adelphia Lodge v. Crawford, 157 Mo. 356; State ex rel. v. Macgurn, 187 Mo. 238; State ex rel. v. Johnston, 214 Mo. l. c. 668, and cases cited. Doubtless, the question as shown by the reasoning in those later cases may be somewhat controlled by whether there has been such bouleversement that the principal thing and incidental thing have swapped places — whether the incidental use has swollen into the principal use and the charter purpose has in turn dwindled to a mere incident. But for the purposes of this case we need pursue the matter no further.

It is settled law that a provision in a charter of a benevolent, charitable or educational corporation exempting its property from taxation so long as it is used for the charter purposes, under the Constitution in force at the date of plaintiff’s charter, is in the nature of a contract. It is not a mere license or gratuity that, once granted, may be withdrawn by another legislature or by another constitution-maker, but is a contract based on the consideration of benefit to the public. [The President and Faculty of St. Vincent’s College v. Schaefer, Collector, 104 Mo. 261, and cases cited.] But before the case could be allowed to break on the foregoing proposition, we would still have to consider whether the use to which'plaintiff’s property is put is within the charter purpose — in other words, whether it is being used “only for purposes of education.” As said before, that question need not be considered until we have disposed of the issue of res judicata. To that question we pass.

(b). Of res judicata.

The question, as presented here, divides itself into two. First. Does the doctrine of the thing adjudged apply to tax judgments ? Second. If so, was the thing adjudged in the first suit the same thing to be adjudged in the second suit?

1. Defendant’s counsel cite us to a line of cases elsewhere, holding that res judicata does not apply to tax judgments. The supporting reason for those cases is that the exercise of the light to tax belongs to sovereignty, and that estoppel doefe not lie against a sovereign. If the question were new, it would be an inviting field' of exploration. It would be profitable to consider it right well before adopting it or the contrary theory, but it is in no way new in this jurisdiction.

In Kansas City Exposition Driving Park v. Kansas City, 174 Mo. 425, the question in all its bearings was elaborately considered on both precedent and principle and our learned brother Gantt reviewed nearly all the cases now relied on by defendant. In that case the circuit court of Jackson county, holding in judgment a charter and a leasehold and use made of the latter by plaintiff, had theretofore in another suit adjudged the property of the Exposition Driving Park exempt from taxation, and res judicata was plead. That case is of strictly peculiar significance in this case. Plaintiff’s charter purpose was to encourage and promote agriculture and improvement of stock. It had authority to establish fair grounds and claimed to be an agricultural and horticultural society within the purview of laws exempting the property of such' societies from taxation. That particular plaintiff at one time established and held a fair, but such bucolic features as horticultural and agricultural displays finally disappeared from its corporate program, and at the time its business was horseracing. It did not run horses itself but, for a price certain, it let its property to parties who managed the races and enjoyed the peculiar gains of that business as once conducted. In the opinion of this court it was not an agricultural or horticultural society as contemplated by the constitutional grant of tax exemption. The circuit court, however, having found for plaintiff in a former suit, that judgment was pleaded in a new suit for the taxes of another year. The defense was allowed. We had no difficulty in coming to the conclusion that the original case was erroneously decided by the circuit court. But constrained by the doctrine of res judicata, we (as did the court below) applied it in the last tax suit between the same parties where recovery was sought for the taxes of another year and where the right to exemption was again in issue on the same conditions. That case is based on the authority of the Supreme Court of the United States in New Orleans v. Citizens’ Bank, 167 U. S. 371, and cases following that, and other well considered cases. To our minds the matter was.so exhaustively considered and so soundly reasoned in the Exposition Driving Park Case that no judicial excuse exists for a re-examination of its doctrine. On that authority, we rule that res judicata applies to tax judgments as to others.

2. There remains the other division of the question, viz., whether the facts, the parties and the issue in the present suit are the same as they were in the 1881 case. In contemplation of law the parties are the same. In New Orleans v. Citizens’ Bank, supra, the contention was made that res judicata did not apply because the officers about to enforce the tax were not the same officers charged with that duty in the former case. But the court brushed that contention aside. It held that the tax collectors and board of assessors, who stood in judgment in the suit when the first decisions were rendered, were duly qualified and empowered to that end and the successors to those officers, defendants now, also were duly empowered. “The mere fact that there has been a change in the person holding the office does not destroy the effect of the thing adjudged.” [Pp. 388-9.] It is familiar doctrine that privies are bound. The identical claim of exemption, on the same property, under the same charter provision is here now that was here when plaintiff sued Hudson, collector (85 Mo. 32). In that case parts of the property were rented out for mercantile and saloon purposes. The collector claimed then, and the collector claims now, that such use of the property took it out of the exemption. The circuit court, the court of appeals and this court adjudged such use of the property did not defeat the exemption so long as the income of such use went alone to the principal corporate purpose. In this case, it is true, parts of the building are no longer rented for stores. It is also true that a more profitable use is made of a certain hall in the old building than was made at the time of the first suit, and that there is 'a bowling alley in the basement from which a small income is derived. But there is no difference in principle in the nse. The identical thing adjudged in the former case was that such use of the property was. not effective to destroy the exemption. Plaintiff was entitled to act on that construction of the charter and govern itself accordingly. Having acted in accordance with the adjudged construction, it would be tolling plaintiff into a pit, or into a gin to be caught by the heel, to permit the taxing authority to now take advantage of a situation resulting from the former judgment.

The mere fact that in the course of its existence the corporate plaintiff paid to some of its shareholders, by way of redeeming their stock, the amount they had paid for it, so long as no interest or profits inured to the stockholders paid off, was merely in the nature of. allowing them to retire from the corporation; and, considering the form of the stock certificates issued, such transaction was somewhat in the nature of paying an indebtedness in the time and way set forth in the certificates, viz., at the will of the directors. Whether what was done was legally done in that behalf, is a question not for decision. We see no facts in the present case destroying. the indentity of the thing adjudged in the former case. In that case the tax exemption was sustained and whether the case was well or poorly decided, it became a proposition settled so long as plaintiff’s property does not exceed $50,000 and so long as its entire income is devoted to keeping up its establishment, maintaining its gymnasium school with its incidental purposes without financial profit and gain by way of dividends to its shareholders. [New Orleans v. Citizens’ Bank, supra; Baldwin v. Maryland, 179 U. S. 220; Kansas City Exposition Driving Park v. Kansas City, supra.]

The judgment is affirmed.

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


author: GRAVES, J.

text:
    VERNON A. CLIFTON v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
    Division One,
    February 28, 1911.
    1. EXCESSIVE VERDICT: $11,800: Impaired Arm. Plaintiff, a railway mail clerk, earning $900 per annum, was twenty-five years of age, and by a collision between defendant’s trains, was thrown against the mail-sack rack of the car, and his right arm caught in the sliding door, resulting in the fracture of the bones near the elbow. He was rendered unconscious for several hours, but bruises on the head and ear healed. He was treated by defendant’s physician, and for eight months by an osteopath, but his salary went on, and he made no proof for money expended for medicines or medical attendance. In about eight months he resumed work for the Government, at the same wages, but at the depot in checking mail sacks, at which he did more or less writing, and worked eight hours a day. In two fingers of the right hand he has lost sensation, and the movement in the elbow is limited by reason of a bony growth. There is a deep indentation of the large muscle of the chest that runs over and supplies the right arm, and that muscle has been severed to a great extent, though not altogether, and the motions and uses of that arm are badly interfered with. He can raise only a few pounds with it, and the injury is permanent, and besides he is nervous when he sees something about to happen. Held, that a verdict for $11,800 is excessive by $5,800.
    2. -: -: -: Remittitur. Although the verdict is grossly excessive, yet if there was no error in the admission • or rejection of testimony or in the instructions of the court, and no misconduct on the part of the jury is shown, the appellate court will require a remittitur as a condition of affirmance, and will not because of the excess order a new trial.
    Appeal from Jackson Circuit Court. — How: Thos. J. Seehorn, Special Judge.
    Affirmed (conditionally).

      S. W. Moore, Gyrus Grane and Geo. J. Mersereau for appellant.
    (1) The verdict is excessive. Adams v. Railroad, 100 Mo. 555; Bnrdict v. Railroad, 123 Mo. 221; Nichols v. Plate Glass Co., 126 Mo. 35; Stolz v. Railroad, 188 Mo. 581; Henderson v. Kansas City, 177 Mo. 177; Smith v. Pordyce, 190 Mo. 1; Devoy v. Railroad, 192 Mo. 197; Phippen v. Railroad, 196 Mo. 321; Chitty v. Railroad, 166 Mo. 133; Dougherty v. Railroad, 197 Mo. 617; G-ordon v. Railroad, 222 Mo. 516; Markey v. Railroad, 185 Mo. 366. (2) The verdict cannot be cured by a mere remittitur, but the case should be reversed and remanded. Cook v. Clobe Ptg. Co., 227 Mo. 171; Partello v. Railroad, 227 Mo. 171.

      A. F. Smith, Boyle & Howell and Guthrie, Gamble & Street for respondent.
    As to the question of the extent of the injury to this young man’s arm, it would be exceedingly-difficult for the court to judge as fairly and as wisely as the jury and the trial judge. Were this a case of amputation, the situation would be certain and the difficulty vanish. The plaintiff in this ease was, except in the aesthetic sense of appearances, worse off than if he had entirely lost his arm. If he had suffered an amputation of his arm at the shoulder, his pain, suffering and nervous fear of further injury would have shortly ended. He would, it is true, have had a greater deformity; but not a much greater deformity. He carries with him constantly an arm crooked and bent, which he can neither straighten out nor bend to any substantial extent; and at the end of it are nerveless fingers. He is constantly guarding and protecting it. It is a constant source of worry and uneasiness to him. The conditions so exhibited were not the efforts of a personal-injury claimant to exaggerate his condition. The thing that appealed to the jury most strongly in favor of the plaintiff was his frank and straightforward manner; the palpably trnthfnl manner in which he presented his injuries so far as they existed and refused to take advantage of the serious nature of the original injuries and his long period of recovery as an excuse for pretending to have pains and difficulties. He has practically little more use of his arm than if he had none. He cannot bend it or straighten it. He cannot raise it in any substantial way. It is not available to bim as a means of defense or protection. He could not guard himself with it in case of a fall. He cannot lift any substantial weight with it. He can only do a little scribbling with it for short periods. This court cannot know the extent of that lack of use as it was disclosed to the jury. Plaintiff and the doctors illustrated it in the presence of the jury; and the jury had full opportunity to know how little use it was to him. The personal appearance of the plaintiff presented another aspect of the matter in respect to which this court is at a disadvantage. He showed himself in his appearance and manner a specially bright young man with a future open to young Americans before him previous to his injury. "While he was given, after eight months’ lay-off on pay, a job at the same rate that railway mail clerks receive when they first enter the service, yet this job was one of mere hack-work in checking mail sacks through the union station, calling for no training, experience or intelligence, and offering no future. He is debarred from any gainful occupation requiring manual effort. He had suffered pain at the time of the trial and was suffering pain still. He must bear throughout life all the annoyances of sudden nervous terrors. He will, a young man of twenty-six, throughout his days nourish and care for this arm and guard and protect it against chance of further hurt without reliance upon it in any emergency that may arise. He is forbidden all the sports and activities of youth. We cannot understand how anyone would regard the amount awarded by this jury as compensation for the loss he has sustained and the ills that he must endure. It is no answer to plaintiff’s claims to cite cases in which verdicts for a less amount have been held by this court to be not excessive. The decisions of this character cited by appellant are no standard by which to measure what the court would have done if the verdicts in those cases had been larger. Nor are decisions rendered in years past just criteria upon the questions of today. Why should, and how can, this court say that an amount which in the past was compensatory for a given.injury is still compensatory therefor. And the courts are not saying it. This court is not saying it. The trend is reflected in the latest decisions of this court upon the subject. Loftus v. Railroad, 220 Mo. 470; Westervelt v. Riailroa'd, 222 Mo. 335; Gordon v. Railroad, 222 Mo. 518; Richardson v. Railroad, 223 Mo. 325 ; Moore v. Railroad, 226 Mo. 689; Dean v. Railroad, 229 Mo. 425. Even twenty-two years ago a verdict in the same amount as that in this case was sustained for the complete loss, of an arm. Dougherty v. Railroad, 97 Mo. 647. ...
   GRAVES, J.

Plaintiff, a railway mail clerk, was injured by a collision between two of defendant’s trains. He sued for damages in the sum of $12,000, and recovered judgment for $11,800. From this judgment defendant has appealed, and thus his troubles reach this court. Whilst the answer is a general denial, yet the defendant made no contention nisi as to non-liability, but directed the force of its efforts toward the measure of damages. The case here is therefore (1) that the verdict is excessive, and (2) that the verdict is so excessive as to bespeak passion and prejudice upon the part of the jury, when certain alleged misconduct of the jury is considered.

These contentions require somewhat in detail the facts as to the injury, as well as other pertinent facts bearing upon the question of damages..

Plaintiff was about twenty-five years of age and earning nine hundred dollars per year. In the collision he was thrown against the mail sack rack in the car, and his right arm was caught in the sliding door of the car, resulting in fractures of the bones near the elbow joint. There were bruises upon his head and ear which healed. He was rendered unconscious for some several hours. He was treated for some days by the physician of the defendant, Dr. Ayers, and upon his return to his home at Paola, Kansas, had his arm manipulated by an osteopath to obviate, if possible, absolute stiffness of the limb. In about eight months after the accident he resumed work for the Government, at the same wages, but not on the road. He was given work at the depot at Kansas City, and his new duties were to check, both in and out, the mail sacks. In so doing he had to do more or less writing; which he did. He worked at this for eight hours per day. In two fingers on the right hand he seems to have lost. sensation. The medical testimony shows that the motion in the elbow is limited by reason of bony growth occasioned by the process of healing. These growths or knobs prevented the full use of the joint. Owing to the injury to one of the large muscles there was impaired motion in the shoulder joint. There was evidence of some soreness in the region of the fourth or fifth ribs. The strongest testimony on this injury to the arm is that of Dr. Foster, and is:

"I examined him the 6th of February, 1906, and I found that the arm was very much — greatly limited in its motion. He could not bend it to any degree, and he could not straighten it out entirely. I found there was some deformity on the outer side of the elbow, which undoubtedly prevented the true movement of the -arm. There must have been a bone misplaced, of course, that is a long time.after the fracture became confirmed, and we attempted to bend it up, there was a sudden stop I saw, not as of any muscular or tendinous resistance, but it was an abrupt resistance, a stoppage of the bending. I found that there were scars on his elbow where an injury had been inflicted, I found also that the shoulder joint was very much limited in motion, could not. raise it up, and I could not raise it any higher than this, could not get it up above his head, like that. Then there was a deep indentation of the large muscle of the chest that runs over and supplies that arm, helps in drawing the arm over in this way (indicating), and also in raising your body up; that muscle had been severed to a very great extent, if not altogether, right near its insertion into the arm: I found that there was imperfect motion of the fingers; he did not have very much of a grip; he could not clasp anything strongly, and all the motions and uses of that arm are very badly interfered with.”

Plaintiff himself complains of being nervous. He says that when he sees something about to happen he becomes nervous. He illustrated by saying that if he sees a truck handle about to fall to the floor it makes him nervous. The several doctors, however, say nothing about this symptom, and express no opinion thereon. Their testimony is confined to the condition of the arm, and this they say will not improve in the future. Plaintiff can clasp this hand in the process of handshaking, but he and one physician say that he hasn’t much “grip.” He says that he can .only raise four or five pounds with this arm, and that much writing tires him.

He lost no time, as the Government 'paid him during the entire time. He made no proof of any money expended for medicines or medical treatment. In fact he had no treatment for which he was liable except that of the osteopath, and there is no-proof of the value of his services. There is proof that plaintiff suffered considerable pain during Ms treatment and suffered some at times up to the date of trial, some fifteen months after the accident.

Defendant introduced no evidence. The court gave a peremptory instruction to find for the plaintiff, together with other instructions not necessary to mention at this point. Defendant contends, as above indicated (1) that the verdict is grossly excessive, and (2) that it is so grossly excessive as to indicate passion and prejudice upon the part of the jury and that a remittitur should not be permitted, but the cause reversed and remanded for another trial. Of these in their order.

I. We agree with defendant that this verdict is much in excess of what-the facts justify. It is true that the motion of this arm is much impaired. It is true that from the evidence he is not likely to have more motion therein, yet he has a very considerable use of the limb, and as distance lends enchantment to the scene, so time and use may add strength to this wounded member. He has lost no time. He has paid out nothing for medicine or medical attendance so far as the record speaks. He is earning the same now as before. His nervousness does not assume a very serious aspect. He himself only complains of this at times when something happens or he sees that it is about to happen. The verdict is very much beyond approved verdicts in this court. [Adams v. Railroad, 100 Mo. 555; Burdict v. Railroad, 123 Mo. 221; Nicholds v. Plate Glass Company, 126 Mo. 55; Stolze v. Transit Company, 188 Mo. 581; Henderson v. Kansas City, 177 Mo. 477, and authorities cited; Smith v. Fordyce, 190 Mo. 1; Devoy v. Transit Company, 192 Mo. 197, and cases cited; Phippin v. Railroad, 196 Mo. 321; Chitty v. Railroad, 166 Mo. 435, and cases cited; Dent v. Traction Company, 129 S. W. 1045; Dougherty v. Railroad, 97 Mo. 647; Gordon v. Railroad, 222 Mo. 516; Markey v. Railroad, 185 Mo. 348, l. c. 366.]

II. It is nest urged that if we find the verdict grossly excessive we should not order a remittitur, but reverse'the case for new trial. This we do not understand to be the rule as announced by this court in the recent case of Cook v. Globe Printing Company, 227 Mo. 471. At page 354 of the opinion of the majority in the Cook Case the rule is thus announced: “The rationale of these late cases is that the fact that a verdict is. too large does not itself indicate that the jury were actuated by passion or prejudice, where there was no error in the admission or rejection of testimony or in the instructions of the court, and no misconduct on the part of the jury was shown, and the evidence established that the plaintiff was entitled to a substantial verdict, and that in such case, if the plaintiff would consent to a remittititr of a part of his verdict, the defendant could not complain.”

The writer did not then, and does not now, subscribe to this rule, but it is the announcement of the Court in Banc, and it is not for a division of- this court to do otherwise than bow in submission to the majority rule announced by the whole court. This I do, and in so doing must hold that there is not in this record sufficient misconduct upon the part of the jury as would forbid their verdict to stand in some adequate sum. We have split verdicts in twain and permitted the remainder to stand. [Moore v. Transit Co., 226 Mo. 689, and cases cited therein.] We have cut off two-thirds of the verdict and yet permitted it to stand. [Cook v. Globe Printing Co., supra.]

So¿ in this case, whilst we think the verdict grossly excessive, yet if the plaintiff will within ten days remit $5800 therefrom as of the date of its rendition, we will permit it to stand for $6000 as of the date of its rendition. Should such remittitur be entered the judgment as above .indicated will be affirmed, otherwise it- will be reversed and remanded.

All concur, except Valliant, J., absent.