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    JAMES T. BRADY v. KANSAS CITY, ST. LOUIS & CHICAGO RAILROAD COMPANY, Appellant.
    In Banc,
    November 6, 1907.
    1. NEGLIGENCE: Lessor: Pleading and Evidence. Where there is substantial evidence tending to show that defendant owned the land where the injury occurred, and the answer tacitly admits such to be the fact, a.petition which alleges plaintiff was employed “in and about said switch yards belonging to defendant herein” and that “in due course of his employment plaintiff was required to go between certain cars belonging to” defendant’s lessee, will, after verdict, be held to charge that defendant owned the land.
    2. -: Assumption of Risks. The servant does not assume extraordinary risks or such as are occasioned by the carelessness or negligence of the master. If the negligence of the master was the proximate or effective cause of the servant’s injury, the master must respond in damages.
    3. -: ——: Switchman: Uncoupling Cars: Foreman’s Duty: Anticipating Switchman’s Peril: Matter for Jury. The switch-crew consisted of the yardmaster, foreman, a switchman (plaintiff) and two others. As cars were being backed, the yardmaster, on the engineer’s side, tried to uncouple a car by using the lever attached to the chain which lifted the coupling pin, hut it was broken, and he shouted to “cut it on the other side.”
    . The foreman answered, “All right; let her come,” and ran around the end of the car, crossing to the fireman’s side, seized the lever and uncoupled the car, and just then saw the flash of the switchman’s lantern, who, at work on the engineer’s side, when he saw the yardmaster’s failure to cut loose the car, hut, though between him and the foreman, did not hear his order to “cut it on the other side,” of his own volition went in between the cars, stood on the brake-beam and leaning against the car behind for support, with one hand held to the low-placed handhold on the car in front and with the other attempted to draw the pin at the same instant the foreman used the lever on the other side; the cars parted, and the switchman fell, and was injured. The evidence tended to show it was the switchman’s duty to cut off and uncouple cars; .that it was his custom to work on the engineer’s side; that the foreman knew such was the custom, unless there was a. special order to cross over and cut ofli the car on the other side; that he also knew it was the custom of the switchman to go on the brake-beam to raise the coupling pin when the lever failed to work; and by his own testimony he did not know where the switchman was when he ran around to cut the car loose. Held, first, that it was the foreman’s duty to know where the switchman was and what he was doing at the time he undertook to seize the lever on the fireman’s side, and, as he had to reach in between the cars to grasp the lever, which was six or eight inches from the car’s corner, he could, had he looked, have seen the switchman standing on the brake-beam with a lighted lantern on his arm; second, the switchman had the right to use the customary method of uncoupling the cars when the lever was out of order; and, tim'd. whether, under the circumstances, the switchman assumed the risk, or the foreman should have anticipated the manner of the injury, was a question to he passed upon by the jury, and not one of law to he determined by the court.
    4. -: Choosing Dangerous Way: Verdict for Plaintiff. Where an instruction is given that “if plaintiff had a choice of two ways for uncoupling cars, one safe and the other unsafe, and he chose the unsafe way, and was injured in consequence, he cannot recover,” the only inference to he drawn from a verdict, for him is that the jury believed that the way chosen by him was no more dangerous than the other.
    5. -: Rules: Established Custom to Contrary. Even if the switchman knew of the company’s rule prohibiting switchmen from going in between cars to couple or uncouple them while in motion,-the tacit approval and acquiescence by the company’s officials in the established custom of switchmen doing so when the lever failed to work and trains were moving slowly, must be regarded as a recognition on their part of the propriety of his so doing.
    6. -: Contributory Negligence: Choosing Unsafe Way: Knowledge. The burden is on defendant to show that plaintiff was guilty of contributory negligence in adopting the method he did to uncouple cars, and, in order to do this, it devolves upon defendant to show, by a preponderance of the evidence, that there were two ways to uncouple them, one safe and the other unsafe, and that plaintiff knowingly chose the unsafe way. And a verdict for plaintiff, where the question is submitted by a proper instruction, is conclusive upon defendant that he did not knowingly take the unsafe way.
    7. -: Peril: Anticipating Particular Injury. It is not necessary to plaintiff’s recovery that defendant railroad company’s agent should have foreseen the particular injury which resulted to him. • It is sufficient if "the injury, as it -occurred, was such as might have been foreseen and avoided by the exercise of reasonable prudence on the agent’s part.
    8. -: Assumed in Instruction. An instruction told the jury that plaintiff “assumed all the risks ordinarily incident to the work he was called upon to perform, but he did not assume the risks, if there were any such, arising from the negligence of said company or its foreman.” Held, not to assume that the company or the foreman was negligent. The jury could not have found that there were risks arising from the negligence of the company or foreman without also finding there was such negligence.
    9. -: Instruction: Declaring What is Proximate Cause. An instruction which told the jury that “plaintiff’s act in going between the cars was the proximate cause of his injury” was properly refused, when that act of plaintiff was one of the vital issues in the case, upon which there was a sharp conflict in the evidence.
    10. EXCESSIVE VERDICT: Power of Court. While the jury has large discretion as to the amount of damages it may allow in any particular personal injury case, the Supreme Court has the power to pass upon the question of the excessiveness of the verdict.
    -: $15,000. A verdict for $15,000 for a switchman for the loss of his foot and the lower part of his leg, is held to be excessive-by $5,000. 11.

      Appeal from Jackson Circuit Court.— Hon. ■ W. B. Teasdale, Judge.
    Affirmed on condition.

      Scarritt, Scarritt $ Jones for appellant.
    (1) Plaintiff’s instruction number one is fatally defective, (a) It is fatally defective because it instructed a verdict against tbe defendant, who is not charged with negligence, but whose liability is sought to be established solely through the allegation and proof that it is the owner of a certain railroad right of way, which it had leased to another railroad company, whose negligence is alleged to have caused the injury, without requiring the jury to find that the defendant ever owned the lands or tracks or right of way where the injury occurred, or that it had leased the same to the Chicago & Alton Railway Company. The answer is a general denial. There is no admission in the record that defendant ever owned the land or tracks where the injury occurred, and yet this essential element to the recovery is wholly eliminated from this mandatory instruction for plaintiff. Such an omission constitutes reversible error. Jackson v. Bowles, 67 Mo-. 609; Crews v. Lockland, 67 Mo, 619; Creer v. Parker,- 85 Mo. Ill; Birtwhistle- v. Woodward, 9'5 Mo. 113; Morris v. Railroad, 99 Mo. App. 455. (b) It is defective in grounding plaintiff’s right to recover upon the fact that Fredericks drew the pin when he “at the time knew, or by the exercise of ordinary care and caution would have known that plaintiff was (merely) in a position of peril between said cars in the act of endeavoring to uncouple the same-.” It omits the essential element that Fredericks knew, or by the exercise of reasonable care would have known that the drawing of the lever and the separation of the cars -would cause Brady’s fall, or that it -would cause any injury to Brady, or that it would in any way increase his peril. Everybody knows that it is dangerous to attempt to stand.between cars on a brake-beam while they are in motion. This instruction does not concede to Fredericks that essential requisite of negligent conduct under the circumstances now being considered, namely., that he knew, or as a reasonably careful person should have known, that his act in rais- . ing the coupling pin would increase the danger of the ' position that Brady occupied in being between the cars in the act of attempting to uncouple them. Wojtylak v. Coal Co., 188 Mo. 281. (e) It is fatally defective in declaring that if the “witness Fredericks carelessly and negligently drew the coupling pin connecting the said cars, allowing the cars to part, thus causing Mr. Brady, the plaintiff, to fall,” etc., a verdict in the absence of contributory negligence or assumption of the risk must be for the plaintiff. Who is the witness Fredericks? Is he the defendant? Why should defendant be held liable because forsooth one Fredericks may have been negligent? There is no showing in this record that will warrant the court in asserting it to be a conceded fact that Fredericks at the time of the injury was in the employ of the Chicago & Alton Railway Company. The trial court in assuming such a material fact — an absolutely essential fact to recovery in this action — at the request of the plaintiff has been led into reversible error. An instruction which assumes the truth of controverted facts is uniformly held erroneous in this jurisdiction. Brown, v. Railroad, 80- Mo. 457; Comer v. Taylor, 82 Mo. 347; Fullerton v. Fordyce, 121 Mo. 13. (d) This instruction is erroneous in submitting to the jury to find as a óondition of the alleged negligence “that plaintiff was required in the course of his employment to go between tbe ears mentioned in evidence in the yards of the defendant for the purpose of uncoupling tbe same, ’ ’ etc. There is no evidence upon which to submit this charge that plaintiff was “required in the course of his employment to go between the cars.” (2) Plaintiff’s instruction 2 asserts that “he (the plaintiff) did not assume the risks, if there were any such, arising from the negligence of said company (the Chicago & Alton Railway Company), or the said witness Fredericks.” This instruction is erroneous in that it assumes there is such a relation between Fredericks and the defendant, Kansas City, St. Louis & Chicago Railroad Company,- that the defendant is liable for Fredericks’ acts. Again we ask, who is Fredericks? What right has the court to assume, without further ado, that Fredericks and defendant, so far as the defendant’s legal liability is concerned, are one? Is- it anywhere admitted that Fredericks is in the employ of the defendant? Or that he is in the employ of the Chicago & Alton Railroad1 Company, or the Chicago. & Alton Railway Company? Upon plaintiff’s theory of this case it devolved upon the plaintiff to prove and to establish by the evidence and to the satisfaction of the jury (1) that Fredericks was the agent for the Chicago & Alton Railway Company; (2) that the Chicago & Alton Railway Company was the lessee of defendant, and (3) that the defendant owned the right of way at the place where the injury occurred. (3) Upon the undisputed facts there was no causal negligence on the part of Fredericks. Railroad v. Schumacher, 152 U. S. 77; Young v. Railroad, 42 W. Ya. 112; Gilbert v. Railroad, 128 Fed. 528; Mathis v. Stock Yards Co., 185 Mo. 434; Jackson v. Railroad, 104 Mo. 457; Williams v. Railroad, 119 Mo. 322; Ftancis v. Railroad, 127 Mo. 658; Railroad v. Smith, 82 Ga. 236. (4) Upon the undisputable facts plaintiff’s negligence was a contributing cause to his injury, (a) ' This act of his, of going between tbe moving cars for tbe purpose of uncoupling, when there was a perfectly working lever on the other side which could have been worked by himself and was safely worked by another employee, shows a heedless and reckless disregard of his own safety. Moore v. Railroad, 146 Mo. 582; Morris v.. Railroad, 108 Fed. 747. Nor is plaintiff to be excused' on the ground that he did not want to1 take the time1 to go around or over the car, or to call to coemployees to aid in the task. Smith v. Box Co., 198 Mo. 715 Gilbert v. Railroad, 128 Fed. 528. (b) If it be true,, and plaintiff says it is, that he was standing firmly upon the brake-beam and was holding to a handhold (no assertion being made that these appliances were defective or unusual), and was in the act of drawing the coupling pin so that the cars would be separated while his back leaned against the opposite car, and the separation of the cars caused him to fall, he was negligent in relying upon that car to support him although the separation may have been caused by the act of another member of the crew with whom he was working. He was negligent in relying upon that car to support him from falling under those circumstances. Young v. Railroad, 42 W. Va. 112; Railroad v. Fox, 20 Ky. 81; Railroad v. Schumacher, 15-2 H. S. 77-. (5) Section 1060, Revised Statutes 1890, is unconstitutional and void in that it denies to defendant the equal protection of the law, and deprives defendant of its prop-' erty without due process of law, contrary to the Fourteenth Amendment to the Constitution of the United States. And it violates sections four, ten, fifteen and thirty of article two of the Constitution of Missouri. It is clear from the reading of this statute imposing a liability upon the lessor domestic company for the negligent act of its lessee or contractee that it applies only when such lessee or contractee is a foreign corporation and not a domestic corporation; in other words, that a domestic corporation is exempt from its terms. And there are no words in this law which impose a like obligation upon domestic corporations as lessees. It is equally clear too that it applies only to the immediate lessee or contractee.-

      Walsh & Morrison for respondent.
    (1) Plaintiff’s first instruction is not defective, (a) The answer admits the ownership of the road and that the switching crew and men in charge of the yards were in the employ of the Chicago & Alton Railway Company. Defendant’s instructions concede the leasing of the right of way. Markey v. Railroad, 185 Mo. 363; Parks v. Railroad, 178 Mo. 120; Bertram v. Railroad, 154 Mo. 654; State ex rel. v. Branch, 151 Mo. 636; Bank v. Hatch, 98 Mo-. 378; Farber v. Railroad, 139 Mo. 272; Anderson v. Bradford, 102 Mo. App. 433; Sweeney v. Railroad, 150 Mo. 402; Henderson v. Kansas City, 177 Mo. 490; Barr v. Armstrong, 56 Mo. 589. (b) The requirement in said instruction to find that Frederick^ “knew, or by the exercise of ordinary care and caution would have known, that plaintiff was in a position of peril between said cars in the act of endeavoring to uncouple the same,” is sufficiently explicit as referring the jury to the peril from Fredericks ’ act. Instructions are to be construed in reference to the evidence before the jury, and need not be- framed so as to exclude contingencies and exceptions not in evidence. Montgomery v. Railroad, 181 Mo. 489; Russell v. Ins. Co., 55 Mo. 594; Moore v. Railroad, 73 Mo. 440; Miller v. Railroad (Mo. App.), 102 S. W. 592; Berry v. Hardmon, 12 Ala. 607; Hale v. Darter, 29 Tenn. (10 Hump.) 95; Waters v. Spencer, 22 Ala. 468; Adams v. State, 22 Ga. 425; Roots v. Tyner, • 10 Ind. 90; Bank v. Keene, 53 Me. 103; Lyman v. Redrnon, 23 Me. 289; Gerrish v. New Markey Co., 30 N. H. (10 Fost.) 484; Davis v. Loftin, 6 Tex. 489; Railroad v. Thomas, 92 Ya. 612. The instruction being good as far as it goes and not misleading, if defendant thought it too general it was its duty to ask a more explicit instruction, failing which it cannot complain. Montgomery v. Railroad, 181 Mo. 489'; Brown v. Railroad, 13 Mo. App. 466; State ex rel. v. Donnelly, 9 Mo. App. 532; State ex rel. v. Branch, 151 Mo. 636; Hughlett v. Lumber Co., 53 Mo. App. 94. But if the instruction is construed as defendant contends, still it is sufficient under the rule laid down in Smith v. Railroad, L. R. 6 C. P. 20', quoted and followed in Hoepper v. Southern Hotel Co., 142 Mo. 389; Harrison v. K. C. Elec. Lt. Co., 195 Mo. 629. (2) Plaintiff’s second instruction is not erroneous, (a) Fredericks’ employment by the Chicago & Alton Railway Company is admitted by the answer and conceded by the defendant’s evidence, (b) It correctly states the law on assumption of risk. Curtis v. McNair, 173 Mo. 280; Settle v. Railroad, 127 Mo. 342; Pauck v. St. L. D. B. & P. Co., 159 Mo. 476; Dean v. Railroad, 199 Mo. 410; Charlton v. Railroad, 200 Mo. 433. Even if this instruction had been erroneous, it would be harmless error because there is no evidence of assumption of risk in this case. (3) Plaintiff’s third instruction is not erroneous. Hartman v. Railroad, 39 Mo. App. 104; Stewart v. Sparkman, 75 Mo. App. 106; State v. Knowles, 185 Mo. 173; 11 Enc. PI. and Pr., 189’. (4) Fredericks’ act in cutting the cars was negligent. That his negligence was the proximate cause of injury, see: Newcomb v. Railroad, 169 Mo. 422; Bassett v. St. Joseph, 53 Mo. 290; Brennan v. St. Louis, 92 Mo. 482; Harrison v. Elec. Lt. Co., 195 Mo. 622; Smith v. Fordyce, 190- Mo. 21; Campbell v. Transfer Co. (Minn.), 104 N. ~W. 547; Meade v. Railroad, 68 Mo. App. 101; Ray v. Railroad, 88 S. W. 469. (5) Plaintiff was not guilty of contributory negligence. Black v. Railroad, 172 Mo. 188; Edington v. Railroad, 102 S. W. 493; Murphy v. Railroad, 115 Mo. 125; Curtis v. McNair, 173 Mo. 292; Pierson v. Railroad, 127 Iowa 13; Brinkmeier v. Railroad, 69' Kan. 738; Railroad v. Mooney, 40 Fla. 32; Gibson v. Railroad, 107 Iowa 596; Kennedy v. Railroad, 190 Mo. 442; Francis' v. Railroad, 110 Mo-. 397; Spaulding v. Railroad, 98 Iowa 212; Ribb v. Railroad, 87 Ga. 631; Ash-man v. Railroad, 90 Mich. 547. (6) Section 1060, Revised Statutes 1899, is constitutional. Dean v. Railroad, 199 Mo. 390. The question is not in' any event properly before this court. Hulett v. Railroad, 145 Mo. 35; Harding v. Illinois, 196 U. S. 77; Farney v. Towle, 1 Black 350.
    IN DIVISION TWO'.
   BURGESS, J.

This is an action to recover damages for personal injuries sustained by plaintiff on October 14, 1902-, while engaged in the performance of his duties as switchman for the Chicago & Alton Railway Company. Plaintiff recovered judgment for $15,000, from which judgment, after unavailing motions for new trial and in arrest, defendant appealed.

The petition alleges the incorporation of the defendant company under the laws of the State of Missouri, and its ownership of a line of railroad in Kansas City, Missouri, and elsewhere, together with switches and yards, and that by intermediate conveyances defendant leased the same to the Chicago- & Alton Railway Company, a corporation organized under the laws of the State of Illinois. That on October 14, 1902, plaintiff was employed by the Chicago & Alton Railway Company as a switchman in and about the yards belonging to defendant in Kansas City, Missouri, in a switching crew composed of one known as William Fredericks, real name unknown, as foreman, one Bankston and the plaintiff, all being under a night yardmaster named Ed. Medley. The petition then states that in due course of his employment, plaintiff was required to go between and upon certain cars belonging to the Chicago & Alton Railway Company then being switched in said yards and upon the tracks belonging to defendant, and while plaintiff was so engaged, the said Fredericks, in the due course of his employment and acting under the direction of said Medley, “carelessly and negligently drew a certain coupling pin which was connecting the said cars between which plaintiff was situated, as aforesaid, causing the said cars to separate suddenly and precipitate plaintiff to the track below, so that he was caught and run over by one of the said cars, causing him severe and permanent injuries.”

The allegations of negligence are as follows:

“1. That said Medley carelessly, negligently and unsldllfully ordered and directed said Fredericks to draw said coupling pin when Medley knew, or by the exercise of reasonable care might have known, that plaintiff was in a-position of peril between said cars and liable to be thrown therefrom to .the track below if said coupling pin was drawn; and,

“2. That the defendant and the said Chicago & Alton Railway Company and their agents, servants and vice-principals belonging to said switching crew and in charge of said yards negligently and carelessly failed and neglected to warn the plaintiff of the peril to which he was exposed by reason of the attempted uncoupling of said ears by said Fredericks and although they knew, or by the exercise of reasonable care and skill might have known, that plaintiff was in said position of danger; and,

“3. That the said ¥m. Fredericks, whose real name is unknown to this plaintiff, carelessly, negligently and unskillfully drew said coupling pin when he knew, or by the exercise of ordinary care and skill might have known, that plaintiff was in a position of peril between said cars and liable to be thrown to the track below by the uncoupling of said cars and thereby crippled and injured.”

That by reason of the foregoing carelessness and negligence plaintiff was run over by the wheels of the cars and his left leg crushed so that it was necessary to amputate it about four inches below the knee; that plaintiff has suffered' and will continue to suffer in the future great pain and anguish of mind and body, and has lost and will continue to lose his natural rest and sleep, and will be forever crippled and deformed; that prior to said injuries plaintiff was a strong, healthy, vigorous man, earning one hundred and ten dollars per month as a switchman, but by reason of said injuries he has lost and will continue to lose all his time and earnings, and his earning capacity has been entirely destroyed and he has become obligated for one hundred dollars for medicine, treatment and appliances and will in the future become obligated for the further sum of five hundred dollars, all to his damage in the sum1 of twenty thousand dollars for which judgment was prayed.

Defendant answered, admitting plaintiff’s employment as a switchman for the Chicago & Alton Railway Company, and denying generally all other allegations in the petition.

Further answering, defendant averred “that the switch engine with which plaintiff was working at the time of the injury was owned, used and controlled exclusively by the said Chicago & Alton Railway Company; that the said switch yards and tracks were in the exclusive and absolute control of the said Chicago & Alton Railway Company; that the employees,, servants and vice-principals, composing the crew and in-charge of said yards, were exclusively in the employ of, and subject to the direction and control of said Chicago & Alton Railway Company; that the only duty which this defendant owed to the public and the plaintiff were its charter duties imposed on it by law, and were and are restricted to the maintenance in proper condition for use of its said roadbed and right of way and to the exercise of reasonable and due care and diligence in the operation of such trains only as are used, controlled, and operated by this defendant; and that it is not liable to the plaintiff nor to the- public for the negligence, if any, of the said Chicago- & Alton Railway Company in the operation of its engines or switch yards; nor had this defendant any contract or any other relations whatever with this plaintiff as such switchman.”

Defendant further pleaded that section 1060, Revised Statutes 1899, is unconstitutional and void in that it denies defendant equal protection of the law and assumed to give plaintiff a cause of action against defendant without due process of law and attempts to impose upon defendant the obligation of another without defendant’s consent and thereby violates sections 4, 10, 15 and 30 of article II, and section 13 of article IV, of the Constitution of Missouri, and the Fourteenth Amendment to the Constitution of the Dnited States.

The answer further alleged contributory negligence on the part of plaintiff in that he carelessly and negligently went in between two cars that were in motion and placed himself in a position of peril and failed to exercise reasonable care for his own protection while in such position; and that plaintiff placed himself in such position of peril unnecessarily and in viola,tion of his duty and in total disregard of his instructions and otherwise carelessly and negligently conducted himself in the premises.

Finally defendant pleaded that the risk of being so injured was one of the usual and ordinary risks of plaintiff’s employment and was assumed by him, and concluded with a prayer for judgment.

Plaintiff was a switchman of fourteen years’ experience, and at the time of receiving the injury he was one of a switch crew of four, consisting of Medley, the night yardmaster, Fredericks, the foreman of the crew, Bankston and himself, all of whom were in the employ of the Chicago & Alton Railway Company in the yards in Kansas City leased by said company from the defendant. The injury occurred about eight o ’clock at night. It was dark at the time, and the switch-crew were in the act of detaching two cars from a train of three or four freight cars then being pushed northwardly by an engine moving at the rate of about five miles an hour. The car to be uncoupled was equipped with two levers, one on either side, with which to draw a coupling pin. As the cars passed Medley, the yardmaster, he tried to uncouple the car by means of the lever on the east side, hut it did not work, the chain having been broken, and he hollowed down the line the order to “cut it on the other side.” Fredericks, who was stationed ahead or in front of the moving cars, said, “All right; let it come.” He then ran around in front of the cars to the west side; and from that side worked the lever which drew the coupling pin. In the meantime Brady, who remained on the east side of the track, of his own volition, and without any order from the foreman, went between the cars, got upon the brake-beam, and while holding to the handhold on the end of the car, with his back against the car behind him, attempted to draw the coupling pin with his free hand at the same time or instant that Fredericks used the lever on the other side. The cars parted and plaintiff fell, Ms left foot being caught and crushed under the wheels of the moving ear. At the time Medley gave the order to “cut it on the other side” Brady was in a position nearer to him than was Fredericks, but Brady testified that he did not hear such order, and that when he saw that the lever did not work on his side he went between the cars to uncouple them by hand, which he said was the usual thing to do under such circumstances. Fredericks testified that he did not know where the plaintiff was at the time he went around to uncouple tMs car, nor at the time he manipulated the lever. Just after he pulled the lever he heard Brady’s lamp rattle and saw him under the cars, and that was the first intimation he had that Brady was there. Fredericks also testified that it was the practice in the C. & A. yards for the switchmen to step on the brake-beam on the engineer’s side and pull the coupling pin when the lever was out of order; that this was the practice in all yards, and that the men always work on the engineer’s side uMess they get a special order to cross over.

Plaintiff’s testimony was, in substance, that Medley gave an order to come ahead, and that when he, plaintiff, discovered that the lever would not work he went between the cars to uncouple them “the same as we always did;” that he was on the brake-beam, holding to the handhold, his back resting against the car behind him, and when in the act of pulling the pin he saw Fredericks grab the lever on the fireman’s side; that the cars parted before he expected it, and being unable to hold himself up by means of the handhold, which he said was in a low position, he fell. He knew that it was dangerous to go between the cars to uncouple them while in motion, but said that it was perfectly safe where he was, providing the car had not been cut from the other side, and he thought he could safely go in there. The cars could have been cut from the other side by going around them or by climbing over the cars to the other side, but he and all the switchmen work on the engineer’s side, and did not work on the fireman’s side unless given a special order to do so. He was following the engine, and it was his duty to cut or uncouple the cars. He did not hear Medley give the order to Fredericks to> “cut it on the other side,” and did not know how Fredericks happened to go around to do that. Plaintiff had worked for the Chicago & Alton in 1898. He identified' the application made by him for work at that time, which was signed and sworn to by him. In this application was the statement that he had received and read a copy of the rules, and that he agreed to be governed by them, but he said that he never, in fact, had received a copy of the rules and never had read them. One of the questions in the application for employment was: “Do you fully understand that it is against the rules of the Chicago & Alton Railway Company to walk between moving cars or step upon or about switch rails, frogs and crossings while the trains or engines are moving near them?” The answer was, “Yes.” Rule 5, concerning which plaintiff in the application had said, “I agree to be governed and bound' by them,” provided: “Jumping on or off trains or engines in motion, getting between cars in motion to uncouple them,, and all similar imprudences are dangerous and in violation of duty. All employees are warned' that if they commit them it will be at their own peril and risk. ’ ’ Plaintiff quit working for the C. & A. in 18991, and when he applied for work this time he said that Mr. Medley put him to work without getting him to sign an application or furnishing him a copy of the rules, and that he did not know what the rules were at that time.

James Walters, who was yardmaster for the C. & A. Railroad in 1898, at Kansas City, and Dennis Ma-honey, who was car inspector for said company at the time Brady was injured, both testified to the effect that switchmen always worked on the east or engineer’s side, and that it was the custom for switchmen, when the lever for raising the pin does not work, to step upon the brake-beam and lift the pin by hand. Walters said that while he was yardmaster there he did not know of this being done in any other way. He also stated that the men down there were not furnished with time-tables or the book of rules in his time.

J. E. Medley testified that he was yardmaster for the C. & A. the night that plaintiff was hurt, and that it was customary for switchmen to go in on the brake-beam to cut off cars, where the lever did not work, and that Mr. Buggies, the general yardmaster, was around the yard when that was being done. He was shown a statement made by him on April 16, 1903, and after reading it over he said that it wás'true. Part of the statement is as follows: “Brady saw me try the lever, and he then went in on the brake-beam to cut it off. He probably was in on the beam when I called to Fredericks. I don’t know that he was not. It is customary in the C. & A. yards and in every yard to go in on the brake-beam to cut off cars where the lever don’t work. Buggies, the general yardmaster, was often down there while men were going in between moving cars to cut them off.”

Plaintiff introduced in evidence1 lease entered into on March 15, 1878, by tbe Kansas City, St. Louis & Chicago Railroad Company, the defendant, to the Chicago & Alton Railroad Company, lessee, and a second lease, dated October 3, 1900, between the Chicago & Alton Railroad Company as lessor and the Chicago & Alton Railway Company as lessee, both of which leases covered all the property, yards and right of way of the Kansas City, St. Louis & Chicago Railroad Company; also deed record, duly identified, containing the deed to the land in question, dated October 26, 1879, from the Kansas City, Fort Scott & Gulf Railroad Company to the Kansas City, St. Louis & Chicago Railroad Company; also plat of the land showing location of tracks in the vicinity of the accident.

At the close of plaintiff’s evidence defendant asked for an instruction in the nature of a demurrer thereto, which was refused by the court, and defendant excepted.

Defendant contends that there is no evidence disclosed by the record tending to show that the defendant owned the land upon which plaintiff’s injury occurred; that it is not alleged in the petition nor shown by the evidence that the engine and cars were owned by the defendant, or that the persons whose alleged negligence caused the injury were in the employ of the defendant, and that, for these reasons plaintiff failed to make a case.

We think there was substantial evidence tending to show that the. defendant owned the land where the injury occurred; besides, the answer tacitly admits such to be the case. The petition alleges that plaintiff at the time of the accident was employed ‘‘in and about said switches and yards belonging to the defendant ■ herein,” and that in the due course of his employment, plaintiff was required to go between and upon certain cars belonging to the said Chicago & Alton Railway Company, then being switched in said yards and being upon the said tracks hereinbefore referred to and the property of the defendant herein. The answer alleges, ‘ ‘ That the. only duties which this defendant owed to the public and the plaintiff were its charter duties imp'Osed on it by law, and were and are restricted to the maintenance in proper condition for use of its said roadbed and right of way,” etc., the defendant thus admitting that it was the owner of the road and right of way. But, in any event, the' petition is good after verdict. [Sec. 672, E. S. 1899.]

There was not, we think] an entire failure of evidence; upon the contrary, there was substantial evidence to take the case to the jury.

It is also insisted by defendant that, according to the evidence, the injury was a mere accident or the result of the hazards to which the plaintiff was exposed in his usual employment, and that there can be no recovery because no causal negligence of defendant’s representatives is shown.

It is well settled that the servant, when he enters the employment of his master, assumes not only the risks incident to his employment, but all dangers which are apparent and obvious as a result thereof, and that the master is no insurer against all accidents that may overtake or hefall the servant in his employ. [Nugent v. Milling Co., 131 Mo. 241.] And, “if the servant, before he enters the service, knows, or if he afterwards discovers, or if, by the exercise of ordinary observation or reasonable skill and diligence in his department of service, he may discover, that the building, premises, machine, appliance or fellow-servant in connection with which or with whom he is to labor, is unsafe or unfit in any particular, and, if, notwithstanding such knowledge or means of knowledge, he voluntarily enters into or continues in the employment without objection or complaint, he is deemed to assume the risk of the danger thus known or discoverable, and to waive any claim for damages against the master in case it shall result in injury to him.” ' [2 Thompson on Neg., 1008; Watson v. K. & T. Coal Company, 52 Mo. App. l. c. 370; Mathias v. Stock Yards Co., 185 Mo. l. c. 434.]

Assumption of risk and contributory negligence are so closely allied that it is often very difficult to draw the line of demarcation between them. There is always danger to the brakeman in uncoupling cars while in motion. Therefore, if plaintiff, in uncoupling the cars, accidentally, and without negligence, fell and was injured, his injury could only be attributed to one of the ordinary risks of his employment,, which risk he accepted, and the defendant, cannot be held to respond in damages on account of said injury. But, while the servant assumes all ordinary risks incident to his employment, he does not assume extraordinary risks or such as are occasioned by the carelessness or negligence of the master [4 Thompson’s Com. on the Law of Neg. (2 Ed.), sec. 4614]. And the authorities all hold that if the negligence of the master or his representative was the proximate or effective cause of the injury, then the master will be held liable.

The evidence upon the part of the plaintiff tended to show that it was plaintiff’s duty, as the man who was following the engine, to cut off or uncouple the cars. Fredericks knew, and he so testified, that it was the custom for the switchmen to work on the engineer’s side, unless there was a special order to cross over and cut a car off on the other side. He also knew that it was the' custom of the switchmen to go on the brake-beam and cut the cars when the lever failed to work. He was Brady’s foreman, the vice-principal of the railway company, and charged with the responsibilities belonging to that position, and it was, therefore, his duty to know where Brady was and what he was doing at the time being; yet, according to his own testimony, when he went round to cut the cars he did' not know where plaintiff was. In order to cut the car ♦ off he had to reach around its end and grasp the lever which was from six to eight inches inside the end or edge of the car, and could, had he looked, have seen the plaintiff standing on the brake-beam with a lighted lantern. Fredericks further testified that the last time he saw plaintiff before the accident he observed no movement on plaintiff’s part that would indicate that he was going in between the cars; that he- did not know that he intended to do that or had done it, and that he certainly would not have cnt the cars if he had. Plaintiff had the right to nse the customary method of uncoupling the cars when the lever was out of order. He was reaching for the lock pin, which would seem to indicate that he was not expecting any one else to uncouple the cars. . He was standing on the brakebeam, with his lantern on his arm, his back against the car behind him, and his hand on the handhold provided by defendant for that purpose, and, whether, under the circumstances disclosed by the record, plaintiff assumed the risk or Fredericks should have anticipated the manner of the injury, was a question to be passed upon by the jury and not one of law to be determined by this court.

Defendant insists that plaintiff is not entitled to recover because, upon his own showing, he was guilty of negligence which directly contributed to his injury.

Plaintiff testified in his own behalf as follows:

“Q. Now, if instead of going in between these cars you had gone around to the other side, or had gone over there, you could have uncoupled the car from the other side without going between them, couldn’t you? A. Yes, sir; but we work altogether on the engineer’s side.

“Q. That is a rule when everything is in order? A. Yes, sir.

“Q. But when it is not, then there is a coupling provided on the opposite side, isn’t there? A. Yes, sir.

“Q. And you could reach that by going around those other two cars? A. Yes.

“Q. The question was, you could have uncoupled the ear without going between, by going- around on the opposite side? A. Yes, sir.

“Q. Now, you knew that it was dangerous to go between the ears when in motion,. didn’t you, Mr. Brady? A. Yes, sir.”

It is contended that the act of plaintiff in going in between the moving cars for the purpose of uncoupling them, when, by going to the other side, he could have uncoupled them by means of a device provided for that purpose, and without getting between the cars or in a place of danger, convicts him of negligence in selecting the dangerous way when a safer one was at hand.

In Moore v. Railroad, 146 Mo. l. c. 582, there is quoted with approval the following from Bailey on Personal Injuries, vol. 1, sec. 1121: “It is a familiar' principle, which common sense as well as the rules of law ought to teach one, that where an employee of a railroad knowingly selects a dangerous way when a safer one is apparent to him, and is thereby injured, he is guilty of contributory negligence.”

Again, from section 1123: “Where a person having a choice of two ways, one of which is perfectly safe and the other of which is subject to risks and dangers, voluntarily chooses the latter, and is injured, he is guilty of contributory negligence, and cannot recover.” [Hurst v. Railroad, 163 Mo. 309.] The same rule is announced in Morris v. Railroad, 108 Fed. 747, and authorities cited; Weber v. Railroad, 100 Mo. 194; Smith v. Forrester-Nace Box Co., 193 Mo. 715, and many other cases.

Upon this identical question, however, the court, at the instance of defendant, instructed the jury as follows :

“The court instructs the jury that if the plaintiff Brady had the choice of two ways for uncoupling the cars, one of which was safe and the other unsafe, and that he chose the unsafe way, and was injured in consequence, then he cannot recover in this action.”

In view of this instruction, the only inference to he drawn from the verdict of the jury is that they believed the way chosen by plaintiff for uncoupling the cars was not more dangerous than the other; otherwise, the verdict must have been for the .defendant.

Moreover, the evidence in behalf of plaintiff tended to show that it was the custom of switchmen, not only in this but in all other yards where ears were switched, to go in on the brake-beam and pull the pin by hand when the lever did not work; and for that purpose a handhold was provided for the safety of the men going in to do this work. Plaintiff testified that the cars were moving at a speed of no more than five miles an hour. Even if he knew of the rule prohibiting switchmen from going in between cars to couple or uncouple them while in motion, the established custom in the yards of going upon the brake-beam under circumstances such as these existed with the tacit approval and acquiescence of the railway company’s officers, and such acquiescence must be regarded as a recognition on the part of the officers of the propriety of the act. The work was done in the C. & A. yards strictly on the engineer’s side, and plaintiff testified that they never worked on the fireman’s side at all. In this he was supported by the testimony of other witnesses. Plaintiff further testified that the man who is following the engine, or the engine’s switchman, cuts off all the cars no matter how long the string of cars. As this was his work, it was his duty to cut the cars as he did, in the usual course of business as done in these yards, provided he- received no order to the contrary. He testified that he did not hear the command of Medley to “cut it on the other side.” It was in evidence that Medley was giving a go-ahead signal, and plaintiff testified that Medley was up by the engine where the engineer could see that the yardmaster was signaling, and that under such circumstances if he, plaintiff, had' given a stop signal it would not have been taken by the engineer, the yardmaster being superior in authority. Plaintiff also testified that he was perfectly safe where he was, provided1 the car had not been cut from the other side.

As sustaining his contention upon this point, ' plaintiff cites the case of Black v. Railroad, 172 Mo. 188, as holding that when the question is submitted to the jury at defendant’s request, and the finding of the jury is for the plaintiff, it is conclusively presumed that the course pursued was not more dangerous than the other. While this is practically the result of what was held in that case, the terms employed are somewhat inapt and incorrect. What we did intend to say was, that the burden was upon defendant to show that plaintiff was guilty of contributory negligence in adopting the method he did to uncouple the cars, and that,.in order to do this, it devolved upon the defendant to show by a preponderance of the evidence that there > were two ways to uncouple the cars, one safe and the other unsafe, and that plaintiff knowingly chose the unsafe way, and that the verdict of the jury was conclusive upon the defendant that plaintiff did not knowingly take the unsafe way.

In Murphy v. Railroad, 115 Mo. 111, the plaintiff, a railroad engineer, was injured by being struck by a cattle-guard near the side of the track, while he was outside the line of the engine and1 tender, trying to tighten a bolt. Brack, P. J.,, speaking for the court, said: “There is much evidence to the effect that he could have whistled out flagmen and stopped his train; bnt because this way was open to1 him it does not follow that he was, as a matter of law, guilty of contributory negligence. It does appear that other engineers would not have attempted to tighten the nut as he did, but their evidence also tends to show that they would have pursued some other course, not because of any danger in standing on the outside step of the tender, but because of their build they could not have tightened it except by stopping the train. The plaintiff being a young and active man, it cannot be said as a matter of law that he was guilty of negligence in doing as he did.Had he known that this fence was close enough to the rail to strike him, then there would have been no excuse on his part for taking the position that he did just before passing the crossing; but the trial court could not, nor can this court, say he had such knowledge.”

In Curtis v. McNair, 173 Mo. 270, the plaintiff was injured by a blow-out from a furnace. An instruction was asked by defendant to- the effect that if plaintiff knowingly selected a dangerous route in front of the furnace, when he could have gone around it in perfect safety, then he could not recover. The trial court modified the instruction so- as to read, “by another route not materially more inconvenient, ’ ’ which modification was complained of by the defendant. This court, speaking through Valliant, J., said: “Of course, if the man had not gone the way he did and at the time he did, he would not have been in front of the notch where the blow-out came, and would not have been hurt. But he was where his business called him, and going the way that was the shortest and most convenient, and the usual way.”

Similar questions were presented in the case of Pierson v. Railroad, 127 Iowa 13. In that case the plaintiff, a brakeman, was attempting to uncouple two ears which were being kicked upon a side track. The cars were supplied with safety couplers, but the lever failed to work, and plaintiff had the cars stopped and then put in slow motion, and he went in between the rails, walking with the cars and attempting to pull, the lever by hand. His foot caught in a defectively Hocked guard rail and was run over by tbe cars and crushed. Plaintiff obtained judgment in the lower court, and defendant appealed. There was evidence to the effect that he might have gone around the engine, or stopped the cars and crawled under, and thus been able to use the lever on the other side. It was a conceded fact that the use of the automatic couplers required the cars to be in motion to be uncoupled. The defendant cited Morris v. Railroad, 108 Fed. 747, and Gilbert v. Railroad, 128 Fed. 529, but the court refused to follow them, and held the whole question was for the .jury, saying in an opinion by Judge McClain: “We. think that, under the decisions of our own court, the question whether, when Harrington found that the safety appliance immediately available to him would not work, he acted as a reasonably prudent man, under the circumstances, in attempting to make the uncoupling by stepping between the rails after the engine was in motion, rather than incur the additional delay necessary to reach the other side of the train, and' try to effect the uncoupling by the appliance on the freight car, was for the jury. ... It was properly left to the jury in this case to say, not simply whether it would have been safer for Harrington to crawl under the coupling, or go around ahead of the engine to the other side of the train, and attempt to uncouple the car by means of the safety appliance, than to attempt to uncouple it by hand, as he did, but whether, under all the circumstances, in view of the necessity for prompt action, which is involved in the railway service, he was negligent in adopting the method which he did adopt, even though another might have been- safer. [Bucklew v. Railroad, 64 Iowa 603; Gibson v. Railroad, 107 Iowa 596; Curtis v. Railroad, 95 Wis. 460; Ashman v. Railroad, 90 Mich. 567; Railroad v. Mooney, 40 Fla. 17.] ” To the same effect are Kennedy v. Railroad, 190 Mo. 424, and Brinkmeier v. Railroad, 69 Kan. 738.

Our conclusion is that the questions of contributory negligence, and as to whether plaintiff had choice of two ways, one safe and the other unsafe, and chose the latter, were for the consideration of the jury.

Instructions 1, 2 and 3, given for the plaintiff, are challenged upon various grounds. They are as follows :

“1. The court instructs the jury that, if you her lieve and find from the evidence that on or about the 14th day of October, 1902, plaintiff was required in the course of his employment to go between the cars mentioned in evidence in- the yards of the defendant for the purpose of uncoupling the same and while between said cars and in the act of uncoupling the same and while said cars were in motion the witness Fredericks car elessly and negligently drew the coupling pin connecting said cars, allowing the said cars to part, thus causing Mr. Brady, the plaintiff, to fall upon the track between said cars; that said Fredericks at the time knew, or by the exercise of ordinary care and caution would have known, that plaintiff was in a position of peril between said cars in the act of endeavoring to uncouple the same; that on account thereof the wheels of said cars were caused to run upon and over the body of plaintiff, mashing and crushing his leg, then your verdict must be for the plaintiff, unless you further believe and find from the evidence that the plaintiff was guilty of contributory negligence, or that he assumed the risk of being so injured, as defined by the other instructions.

“2. The court instructs the jury that the plaintiff Brady, in entering upon and continuing in the employment of the said Chicago & Alton Railway Company as a switchman, assumed all the risks ordinarily incident to the work he was called upon to perform, but he did not assume the risks, if there were any such, arising from the negligence of said company or the said witness Fredericks.

“3. The jury are instructed that even though they should .believe and find from the evidence that at the time of the injury to Mr. Brady, the Chicago & Alton Railway Company had established the rule known' as ‘Rule V,’ introduced in evidence, and that plaintiff had knowledge of said rule, yet, if you further believe and find from the evidence that there was an established usage and custom on the part of the defendant’s switchmen, at and prior to the injury to Mr. Brady, to go between moving cars for the purpose of uncoupling same when the chains upon said coupling were broken so that the pins could'not be pulled with the lever and that said established usage and custom aforesaid, if any, was known and acquiesced in by the superior officers of the Chicago & Alton Railway Company, then plaintiff Brady cannot be Jield guilty of contributory negligence solely on the ground that he violated said' rule.”

The objection urged against instruction numbered 1 is that it instructed a verdict against the defendant, who is not charged with negligence, without requiring the jury to find that the defendant ever owned the land! or tracks or right of way where the injury occurred, or that it had leased the same to the Chicago & Alton Railway Company.

We have already ruled that both the ownership and leasing of said property are practically admitted by defendant’s answer. As to the question of leasing, the eighth instruction asked by defendant was that section 1060, Revised Statutes 1899', “does not contemplate or mean that the defendant company as a lessor shall be and remain liable to the employees of the Chicago & Alton Railway Company for any injuries caused by the negligence of the sublessee., the Chicago & Alton Railway Company, in operating its trains.” In any event, the defects in the instruction complained of, even if error, could not have prejudiced the rights of the defendant, and the judgment should not he reversed upon that ground.

A, further objection urged against this instruction is that it grounds plaintiff’s right to recover upon the fact that Fredericks drew the pin when he “ at the time knew, or by the exercise of ordinary care and caution would have known, that plaintiff was in a position of peril between said cars in the act of endeavoring to uncouple the same,” without requiring the jury to find that Fredericks knew, or by the exercise of ordinary care might have known, that his act would cause plaintiff to fall. But even if it did not' so require, it is not necessary to plaintiff’s recovery that defendant’s agent, Fredericks, should have foreseen or anticipated the particular injury which resulted. It is sufficient, if the injury as it occurred was such as might have ■ been foreseen and avoided by the exercise of reasonable prudence.

In the case of Dean v. Railroad, 199 Mo. l. c. 411, there is quoted, with approval, from Fishburn v. Railroad, 127 Iowa 483, the following: “The liability of a person charged with negligence does not depend on the question whether, with the exercise of reasonable prudence, he could or ought to have foreseen the very injury complained of; but he may be held liable for anything, which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission,” citing Gilson v. Delaware C. Co., 65 Vt. 213, 26 Atl. 70, 36 Am. St. Rep. 810; Hill v. Winsor, 118 Mass. 251; Bunting v. Hogsett, 139 Pa. St. 363, 21 Atl. 31-33-34, 12 L. R. A. 268, 23 Am. St. Rep. 192; Higgins v. Dewey, 107 Mass. 494; Brown v. Railroad, 54 Wis. 342; Railroad v. Wood, 113 Ind. 544; Savage v. Railroad, 31 Minn. 419; Railroad v. Kellogg, 94 U. S. 475.

There are other criticisms upon this instruction, but seemingly without merit. The instruction, taken in its entirety, is free from substantial error. The whole question, as to whether or not Fredericks’ act in1 drawing the coupling pin, and thus causing the cars to separate, was negligence, was for the consideration of the jury.

It is claimed by defendant that plaintiff’s instruction number 2 is erroneous in that it recites that plaintiff “assumed all the risks ordinarily incident to the work he was called upon to perform, but he did not assume the risks, if there to ere any such, arising from the negligence of said company or the said witness Fredericks.” Defendant contends that this instruction assumes that the railroad company and Fredericks were negligent. We do not, however, so understand the instruction. The question of negligence on the part of Fredericks or the railroad company had already been submitted to the jury by plaintiff’s first Instruction, and the risks mentioned in said instruction numbered 2 were risks arising from the negligence of the railroad company or Fredericks, if there was any such. Instructions must be read together and with reference to each other. The jury could not have found that there were risks arising from the negligence •of the company or Fredericks without also finding that there was such negligence.

In Dammann v. St. Louis, 152 Mo. 186, plaintiff therein sued for damages to his-property which was alleged to have been damaged by a leak in a pipe of a water main, and objection was made to an instruction which required the jury to find if “such leak was directly caused by the negligent and unskillful laying of ■said pipe by the person in charge of said work,” etc. It was claimed that the instruction assumed that the pipe was negligently and unskillfully laid, and only submitted the question of cause. But the court said: ■“The jury could not find that the leak was caused by the negligent and unskillful laying of the pipe without finding that it was negligently and unskillfully laid.”

A somewhat similar question arose in Geary v. Railroad, 138 Mo. 251, in which Brace, J., speaking for the court, said: “The objection urged to instruction number 2, given for the plaintiff, is that ‘it assumes that the wheel of the locomotive was cracked, dangerous and defective.’ We do not so understand this instruction. What the court told the jury In this regard by the instruction was that ‘if the jury find from the evidence that the defendant’s engine was derailed by reason of the cracked, defective and dangerous con-, dition of said wheel,’ etc. How the jury was to find that the engine was derailed by reason of the cracked, defective and dangerous condition of the wheel, without finding that the wheel was in a cracked, defective and dangerous condition, we think would be past the understanding of the ordinary juryman, and would perhaps • suggest itself only to the verbal critic who found it necessary to find some fault in the instruction, which in this instance was evidently not found' by the learned counsel for the defendant until after the trial, for their own instructions contain a like assumption, if this be an assumption.”

The point must be ruled against the defendant.-

Plaintiff’s instruction numbered 3 is also claimed to be erroneous for the reason, as stated by defendant, that it assumes facts not in evidence, and is, therefore, not predicated on the evidence. We are unable to agree to this. The facts disclosed by the evidence, we think, fully warranted this instruction.

Error is assigned upon the refusal of the court to • give defendant’s instruction number 6, which reads as follows:

“The court instructs the jury that plaintiff’s act in going between the cars while in motion was the proximate cause of his injury; and if it appears from the evidence that his act in so doing directly contributed to his injury and that he would not have been injured but for such act, then he cannot recover in this action, and your verdict should be for the defendant.”

This instruction was properly refused because it told the jury that plaintiff’s act in going between the cars, while in motion, was the proximate cause of his injury, when this was one of the vital issues in the case, and upon which there was a sharp conflict in the evidence. It in effect amounted to an instruction to find' for the defendant. Besides, it is in direct conflict with plaintiff’s first instruction.

The final contention is that the verdict is excessive. There is no settled rule by which courts are to be governed in estimating damages in cases of this character; so that damages in each case must depend upon and be considered in connection with the facts in relation to the injury, and the seriousness of its results. That plaintiff’s injury in the loss of his foot and the lower part of his leg was a very serious one cannot be gainsaid. And, while the jury has large discretion as to the amount of damages it may allow in any particular case, this court has the power to pass upon, the question of the excessiveness of the verdict. In this c%se the verdict seems to us to be excessive, and that the judgment should be reversed and the cause remanded on the ground of excessive damages, unless plaintiff will remit $5,000 thereof within ten days.

All concur.

IN BANC.

PER CIJRIAM. — The foregoing opinion by Burgess, J., in Division Two, is hereby approved and adopted as the opinion of this court:

All concur.


source: Caselaw Access Project

author: POX, J.

license: Public Domain

text:
    THE STATE ex rel. GRAY, Judge, v. WILDER, State Auditor.
    In Banc,
    November 6, 1907.
    1. CIRCUIT JUDGES: Expenses: Circuits of One County. The statutes do not provide for the payment of the expenses of a circuit judge, incident to the holding of court at some place in his circuit other than the place of his residence, where the circuit consists of one county only.
    2. -: '-: -: Act of 1905: Repeal. The Act of 1905, Laws 1905, p. 291, repealing sec. 9701, Revised Statutes 1899, which provided for the payment of the actual expenses of a circuit judge incident to the holding of court at any place in his circuit other than the place of his residence therein, and enacting a new section by which he is allowed one hundred dollars per month as and for all expenses incident to the holding of court at any such place, and providing that said “act shall not apply to circuits consisting of one county only,” expressly repealed said section 9701; nor does the fact that the proviso says “this act shall not apply” instead of “this section shall not apply” leave said section 9701 still in force as to such circuits. The plain intent of the act was to repeal the law as it then existed applicable to the subject of paying the expenses of circuit judges, and to enact a new law applicable thereto, and not to provide a method by which judges in circuits consisting of one county should be paid their actual expenses as theretofore and judges in circuits consisting of more than one county should be paid one hundred dollars per month in lieu of all such expenses.
    3. STATUTES: Rules of Construction. The true intent and meaning of the lawmaking authority, as expressed in the language employed, should, if possible, be ascertained and declared, and, in ascertaining that intent and meaning, words and phrases are to be taken in their plain or ordinary and usual meaning.
    4. -: -: Wisdom and Results. Courts construe statutes as written, without regard to results of the construction or the wisdom of the law as thus construed.
    Mandamus.
    Peremptory writ denied.

      Howard Gray for relator.
    (1) It will be admitted that relator has the right to have his necessary expenses paid while holding court in Joplin, unless that right has been taken away by the Act of March 10, 1905. And the act expressly provides that it shall not apply to circuits consisting of only one county. The proviso at the end of sec. 2 of the act is not limited to that section, and does not read, “This section shall not apply,” but reads, “This act shall not apply.” And, therefore, the judges of the circuits defined in the proviso are not affected by the act. The act is entitled “An Act to Repeal Section 9701 and to Enact a New Section — .” The repealing of the old section is one part of the act, and the enacting of a new section is the other. And the provsion' at the end of the act is not limited to the enacting part of the act but applies with equal force to the repealing part. (2) The mere fact that section 1 of the Act of 1905 says that section 9701 is repealed does not necessarily mean that the word “repealed” as used therein is to be taken in its most sweeping and absolute sense. The repealing clause must be construed in connection with the whole act and with reference to the intention of the Legislature enacting it. The word is not to be taken in an absolute, if it appears upon the whole act to be used in a limited sense. State ex rel. v. Fiala, 47 Mo. 310; State ex rel. v. Mason, 153 Mo. 23; Smith v. People, 47 N. Y. 330. (3) The general purpose and object of a statute is never to be overlooked in its construction and application. Ross v. Railroad, 111 Mo. 19; Carson-Rand1 Co. v. Stern, 129 Mo. 381; Penbroke v. Huston, 180 Mo. 627; Andrew County ex rel. v. Schell, 135 Mo. 31. The history and reason for its enactment may always be invoked. State v. Balch, 178 Mo. 392. The letter of the statute may be enlarged or restrained according to the true intent of the framers of the law. Andrew County v. Schell, 135 Mo. 31; Ex parte Marmaduke, 91. Mo. 254; Grimes v. Reynolds, 184 Mo. 679; State v. McLain, 49 Mo. App. 400; State v. Bengsch, 170 Mo. 81; Light Co. v. Scheurich, 174 Mo. 235. (4) The Act of 1905 was passed for the sole purpose of increasing the compensation of the judges and not because they were not getting all their expense money. And it was not expected that the one hundred dollars a month allowed for expenses would be used as-such, as common experience tells us that the amount allowed was largely in excess of the actual expenses. This position is fortified by the fact that the act gives the judges of the criminal courts the one hundred dollars a month notwithstanding they hold no court except in their own counties. It cannot be said that the Legislature intended to take away the expense money in the 25th circuit because the judges were getting $3,200 a year. If this was the intention, the act would have provided that the whole $3,200 should be paid by the State and not require Jasper county to pay $1,200 of it to' each judge. (5) The act as it was first introduced applied to all circuit and criminal courts. P. 327 II. J. An amendment was offered and adopted excluding the judges of the criminal courts. P. 553. Afterwards this amendment was reconsidered and the provision as to the criminal courts retained and the clause excepting circuits in cities of 300,000 inhabitants and circuits consisting of only one county adopted. P. 560. The whole history of the act shows very plainly that it was the intention of the Legislature to leave the judges in the circuits described in the proviso unaffected. And when this conclusion is reached, it is the plain duty of the court to so construe the act as to carry out this intention. State ex rel. v. Hostetler, 137 Mo. 636; State ex rel. v. Slover, 126 Mo. 652; Conner v. Railroad, 59 Mo. 285; St. Louis v. Lane, 110 Mo. 254; Kane v. Railroad, 112 Mo. 34; State v. King, 44 Mo. 283: And the fact that a statute expressly refers to another and says that it is “hereby repealed” does not always mean that the repeal is general, but it may be limited or only an amendment to the prior act. State ex rel. v.Fiala,47 Mo. 310; State ex rel. v. Mason, 153 Mo. 23; Smith v. People, 47 N. T. 330; Copeland v. St. Joseph, 126 Mo. 417. (6) The same rules apply in construing a proviso in an act as in construing statutes generally. State ex rel. v. St. Louis, 174 Mo. 125; State v. Tower, 185 Mo. 96.

      Herbert'8. Hadley, Attorney-General, and N, T. Gentry, Assistant Attorney-General, for respondent.
    (1) Respondent admits the correctness of relator’s contention in reference to ascertaining the intention of the Legislature, in passing the Act of March 10, 1905. If the wording of said act, or the wording of any other act passed by the same Legislature, indicated an intention to continue the payment of the traveling expenses of circuit judges, then relator is entitled to the relief asked. But it is insisted that nowhere in the session Acts of 1905 can language, indicating such an intention, be found. (2) Section 9701, Revised Statutes 1899, provides that every judge of a circuit court or criminal court in this State shall be allowed and paid his travelling expenses while engaged in holding court in any place in his circuit, except the place of his residence. The Act of March 10; 1905 (Laws 1905, pp. 291 and 292) repealed section 9701; not a part of the section, but the whole section. And, in lieu thereof, a new section was enacted, which section provides for the traveling expenses of circuit judges, other than those in cities containing 300,000' inhabitants, and other than those consisting of circuits of only one county. It will, therefore, be seen that the General Assembly repealed the law allowing circuit judges their traveling expenses; and enacted a law which makes no' provision for allowing expenses to relator and other circuit judges similarly situated. That this was an error or an oversight on the part of the lawmakers may he conceded; and that the same works a hardship on relator and others may also be conceded. However, this court cannot remedy such alleged error or oversight; but the same should be called to the attention of another branch of our state government.
   POX, J.

This is an original proceeding in this court by which it is sought by the relator to obtain from this court a peremptory writ of mandamus compelling the respondent to audit certain items of expenses incurred by the relator in holding court in the city of Joplin, Jasper county, Missouri. We deem it unnecessary to set out in detail the petition of the relator. It will suffice to briefly state the facts upon which this proceeding is predicated. Judge Gray, the relator in this proceeding, is a resident of the city of Carthage, Jasper county, Mo., and ever since the first Monday in January, 1905, he has been and he is now the judge of Division No. One of the circuit court of Jasper county, and said county constitutes the 25th Judicial Circuit. Both the cities of Carthage and Joplin in Jasper county constitute the entire circuit. Under an act of the General Assembly of the State of Missouri three terms of court are held each year in the city of Joplin. Judge Gray, relator herein, held the October term, 1905, at Joplin, and on Nov. 15, 1905=, he filed with the respondent his itemized account of expenses necessarily incurred in holding said term, as is provided by section 9701, Revised Statutes 1899. The respondent, who is the State Auditor of Missouri, refused to allow the account for expenses filed by the relator on the ground that the provisions of section 9701, Revised Statutes 1899, were expressly repealed by the act of the General Assembly, approved March 10, 1905, and that there is no law'now in force applicable to the demand of the relator, authorizing the auditing or payment of such claims. There is no dispute as to the facts. That the relator is the regularly elected and qualified judge of Division No. One of the twenty-fifth judicial circuit is conceded. The fact that he held the October term of court in 1905 in the city of Joplin and incurred the expenses evidenced by the itemized account filed with respondent is not questioned. The respondent admits the allegations as contained in the petition and simply by demurrer presents the question that, conceding the facts stated in the petition and alternative writ to be true, plaintiff is not entitled to the relief asked.

This is a sufficient statement of the nature and character of this controversy to enable us to determine the legal propositions involved.

OPINION.

As indicated in the foregoing statement the only legal proposition disclosed by the record in this cause is, does the act of March 10', 1905' (Laws 1905, pp>. 291-292), repeal section 9701, Revised Statutes 1899? In other words, under the law as now in force is .there any authority for the respondent to audit the itemized account as presented by the relator, predicated upon the provisions of section 9701, Revised Statutes 1899'?

Section 9701, Revised Statutes, 1899, provides: “Every judge of a circuit court or of a criminal court in this State shall be allowed and paid all sums of money actually expended by him in necessary expenses while engaged ini holding any regular, special or adjourned term of court at any place in his circuit other than the place of his residence therein, or while engaged in going to and from any such place for the purpose of holding such terms of court, and such sums of money for said expenses shall be paid out of the state treasury in the same manner that the salaries of circuit judges are now paid by law; but no money shall be paid from the treasury under the provisions of this section until such judge shall file an itemized account with the state auditor, showing all such actual expenses incurred by him.”

The expenses of circuit judges were paid in accordance with the provisions of the above-quoted section until the enactment of section 9701 by the G-eneral Assembly, approved March 10, 1905: That act provided: “ Section-1. That section 9701 of the Revised Statutes of Missouri of 1899:, as the same appears in chapter 152, page 2251, volume 2 of the Revised Statutes of the State of Missouri of 1899, relating to expenses of judges of circuit courts and criminal courts, be and the same is hereby repealed and the following section enacted in lieu thereof relating to the same subject to be known as section 9701, as follows, to-wit:

“Section 9701. Every judge of a circuit court or of a criminal court in this State shall be allowed and paid the sum of one hundred dollars per month as and for his expenses incident to the holding of all regular, special or adjourned terms of court at any place in his circuit other than the place of his residence therein, and such sum of money for said expenses shall be paid out of the State treasury monthly in the same manner that the salaries of circuit judges are now paid by law: Provided, that this act shall not apply to circuits in cities of this State- containing over 300,000 inhabitants nor to circuits consisting of one county only.”

It is manifest that the lawmaking power, by the act last above cited, intended to change the manner and method of paying the expenses of the circuit judges, and there is no escape from the conclusion that the act of 1905 in express terms repeals the entire section of 9701, Revised Statutes 1899, and in lieu of that section provides entirely a different method of paying the expenses of the circuit judges of this State.

It is- insisted by relator that the proviso at the end of section 2. of the act of 1905 is not limited to that section and does not read “this section shall not apply, ’ ’ but reads ‘ ‘ this act shall not apply, ’ ’ and therefore it is urged that the judges of the circuit courts defined in the proviso are not affected by the act. We are unable to give ou.r assent to this insistence of the learned relator. The General Assembly by the provisions of the act of 1905 simply intended to repeal the law as it then existed applicable to the subject of paying expenses of circuit judges, and enact a new law applicable to that subject. The only authority prior to the enactment of section 2 of the act of 1905 which authorized the payment of expenses of circuit judges was section 9701, Revised Statutes 1899, and by the act of 1905 that section was absolutely repealed and a new section known by the same number, 9701, was enacted as applicable to the sub>ject, and that is the only law in existence which authorizes the payment of expenses of circuit judges, and it provides how the circuit judges shall be paid and then also provides that “this act shall not apply to circuits in cities of this State containing over 300,000' inhabitants nor to circuits consisting of one county only.” It is certainly clear that the proviso did not exempt from the operation of this act any part of the provision of the old law applicable to the payment- of expenses of circuit judges, and if it be insisted that the proviso did intend that the repealing clause in section 9701 should not apply to circuits in cities in this State containing over 300,000 inhabitants nor to circuits consisting of one county only, then we would have as applicable to those circuits an entirely different method of paying the expenses of circuit judges than the one provided by the new section 9701, and such was clearly not the purpose or intention of the lawmaking power.

Section 1 of the act of 1905 is the mere formal provision for repealing the old section. Then follows the enactment in lieu thereof relating to the same subject, section 9701, and it is too plain for discussion that the General Assembly, when they provided that “this act shall not apply,” etc., had sole reference to the substance of the real enactment which treated of the subject under consideration.

We have given careful consideration to the numerous authorities cited by relator and we have no fault to find with the announcement of the rules in those cases; however, we are of the opinion that 'they do not support the insistence of the relator in the case at bar. It is fundamental and one of the cardinal rules in the construction of statutes that the true intent and meaning of the lawmaking authority, as expressed in the language employed, should, if possible, be ascertained and declared. On the other hand, it is equally well settled that words and phrases shall be taken in their plain or ordinary and usual sense, and that it is incumbent upon the' courts to construe a statute as written, without regard to the results of the construction, or the wisdom of the law as thus constructed. There is no ambiguity in the terms used in section 9701, and they are susceptible of but one construction and that is, that by the proviso it was not intended to embrace circuits in cities of this State containing over 300,000 inhabitants or circuits consisting of one county only; therefore those circuits were left without the pale of the provisions which authorize the payment of expenses of the judges of those circuits, and there is no law in existence now which would authorize the payment of such expenses.

We have thus indicated our views upon the leg-al propositions disclosed by this record, which results in the conclusion that the peremptory writ of mandamus must be denied, and it is so ordered.

All concur.


author: GRAVES, J.

text:
    THE STATE ex rel. McCLEARY v. ADCOCK et al., Constituting State Board of Health.
    In Banc,
    November 6, 1907.
    1. PHYSICIAN’S LICENSE: Matriculant. Unless the applicant for a license to practice medicine was a matriculant in a medical college prior to March 12, 1901, he was not, under the act of March 21, 1903, entitled to a license in 1904.
    2. -: -: Discretion of Board. The Board of Health cannot escape a peremptory writ of mandamus to issue to a physician a license to practice medicine by a claim that they investigated the evidence he offered showing him to have matriculated in a medical college prior to March 12, 1.901, that they exercised their discretion on the subject and that their judgment is final. Discretion must always be reasonably exercised, and as to whether or not the board reasonably exercised it is a question for the courts.
    3. -: -: -1: Arbitrary. It is not within the power of the State Board of Health to arbitrarily refuse to issue to an applicant a license to practice medicine.
    4. -: -: -: -: Evidence: Mandamus. The State Board of Health cannot, against the rules of evidence, and the great weight of positive evidence in the case, that a graduate of a medical college on March 21, 1904, had prior to March 12, 1901, matriculated in a medical college, refuse to issue him a license on the plea that they have found he was not a matriculant prior to that date; and where that is their only defense the court by mandamus will compel them to issue him a license.
    5. ADMINISTRATIVE BODIES: Discretion. Even where administrative bodies are clothed with discretionary powers an unreasonable exercise of that discretion is a subject-matter for review in the courts..
    6. — -: -: Arbitrary Exercise: Remedy. The only remedy of one aggrieved by the arbitrary refusal by an administrative board to issue a license to an applicant who under the law and the clear evidence is clearly entitled to such license at its hands, is by mandamus.
    7. -: -: Ministerial Power. The State Board of Health ■ acts ministerially, and not judicially, in passing on the right of an applicant for a license to practice medicine. If the conditions prescribed by law exist, the license must be granted; and tie court will by mandamus compel tbe board to issue the license.
    8. -: Evidence. Nor can an administrative board act arbitrarily against tbe great weight of positive evidence that the applicant has met those conditions.
    Mandamus.
    Peremptory writ awarded.

      J. A. McLane for relator.

      Herbert 8. Hadley, Attorney-General, and N. T. 'Gentry, Assistant Attorney-General, for respondents.
    Even if the respondents erred in reference to the weight of evidence, that error is one that cannot be corrected in a proceeding of this kind. If their action was the result of bias, prejudice or ill-will; or if they acted harshly, oppressively or without any evidence to support them, it . is frankly conceded that their action might be reviewed and reversed. Respondents are a quasi-judicial body; it is their duty to investigate and determine many things which the law has very properly assigned to their good judgment. If the evidence as to the moral character of the relator was conflicting, the commissioner and also the Supreme Court would defer to the finding of respondents thereon. Courts will not usurp* the-functions of that board, and, in a mandamus proceeding, decide upon the weight or preponderance of the evidence. So, where there is a conflict in the evidence as to the date of relator’s matriculation, it is earnestly insisted that the same rule of law should be applied. In substance, this has been the holding of our courts heretofore on similar questions. State ex rel. v. Gregory, 83 Mo-. 136; State ex rel. v. Lutz, 136 Mo. 640; State ex rel. v. Goodier, 195 Mo. 560; State v. Smith, 190 Mo. 706; Champagne v. Harney, 189 Mo. 729.
   GRAVES, J.

Relator, Dr. A. S. M-eCleary, graduated from, the Eclectic Medical University of Kansas City, Missouri, March 24, 1904, and received his diploma therefrom on that date. This school is duly incorporated under the laws of Missouri, and has a four-years’ course of study. He claimed to have been a matriculant in said school in the fall of 1900, and therefore prior to March 12, 1901. On or about November 27, 1906, he presented to relators all the evidence required by the act approved March 21, 1903, to entitle him to a license from respondents, who constitute the State Board1 of Health, to practice medicine and surgery in the State of Missouri. Relator on said date tendered to- respondents the required fee under the statute, but respondents refused to grant to relator a license and thereafter relator applied to this court for a writ of mandamus, and the alternative writ was duly granted. Among other things stated in the alternative writ, we find:

“That said Board of Health of the State of Missouri has failed, neglected, and still fails and neglects, to issue to relator a license to practice medicine in the State of Missouri; that said Board is composed of seven physicians, five of whom are Allopathic physicians; that said Board is biased and prejudiced against relator; that relator is a matriculant and graduate of an Eclectic School of Medicine; that a majority of the members of said Board of Health belong to the regular or Allopathic School of Medicine, a school or system of medicine entirely different and opposed to the school or system of medicine of which relator is a matriculant and graduate; that the school of medicine of which a majority, or five of said members of said Board belong, are opposed and averse to giving relator a license to practice medicine in the State of Missouri, because relator is a matriculant and graduate of a system of medicine differing from the system of medicine of which a majority of the members of said State Board of Health are graduates.”

The return of respondents is in this language:

“Now, on this day, come the respondents, and for return to the alternative writ herein, admit that it is true as alleged in the alternative writ, that the respondents constitute the State Board of Health of Missouri, having been duly appointed and qualified as members of said Board; they admit that on the 27th day of November, 1906, the relator appeared before respondents, as members of said Board of Health, in Kansas City, Missouri, and tendered to them the sum of fifteen dollars, the fee allowed by law; they admit that the relator then and there produced satisfactory proof of his good moral character; and they admit that he then and there produced satisfactory evidence that he graduated from the Eclectic Medical University on March 24, 1904, and received a diploma, properly signed by the officers and professors in said University, which diploma was dated March 24, 1904. But the'respondents deny that the relator produced to them satisfactory proof that he matriculated in the Eclectic Medical University, or in the medical department of any university, school or college prior to March 12, 1901. And for further return respondents say that relator produced before them at said time and place a paper which purported to be signed by an officer of said Eclectic Medical University and which purported to be a receipt for the matriculation fee of relator in said University and which purported to be signed November 12, 1900'; that upon careful inspection of said receipt with a microscope, it was discovered that the same was originally dated November 12, 1901, and that the same had been changed to 1900. That the relator produced before them certain affidavits, purporting to have been signed by teachers in said University, which affidavits stated that the relator had attended lectures in said University in the fall of 1900'. That they examined certain records and papers of said University, but failed to find the name of relator in the list of scholars of said University for the year 1900. Respondents further say that they are not satisfied with the evidence so produced before them that the relator matriculated as a student in said University prior to March 12, 1901; and upon the evidence so produced, declined to issue a license to relator to practice medicine in Missouri. And further, respondents deny each and every other allegation in the alternative writ. Wherefore, the premises considered, respondents pray that no peremptory writ of mandamus issue herein, that the alternative writ be discharged, and that respondents be awarded their costs herein.”

The reply to this return is a specific denial of all new matter in the return.

Hon. A. L. Cooper was appointed commissioner by this court to take the testimony, and after so doing, he has made a report in which there is a finding both of fact and law, accompanied with all the testimony in the case. The report is one evidently prepared with great care. The report concludes as follows: “My findings and conclusions are, therefore, as follows:

“1. The relator did matriculate in the Eclectic Medical University of Kansas City, Missouri, prior to March 12, 1901, and established that fact by the great weight of the evidence, both at the hearing before the Board of Health and before me.

“2. The Board of Health did not give to the relator’s evidence the weight and consideration to which it was entitled and in that respect acted without due regard to the legal rights of relator.

“3. I find, and the pleadings admit, that he had complied with all other conditions required by the statute.

“I therefore respectfully recommend that the peremptory writ prayed for be issued. ’r

We have gone through the evidence, and the conclusions of the commissioner, as to the facts, are the only ones which could have rightfully been reached. As to the law, we will discuss that in the course of the opinion.

OPINION.

An examination of this record shows that the overwhelming evidence, both before the commissioner, and previously before the State Board of Health, is to the effect that relator had matriculated in the Eclectic Medical University of Kansas City, Missouri, prior to March 12, 1901. All other requisites for a license stand admitted by the return. In other words, the only disputed question is, was the applicant, Dr. McCleary, a matriculant in said school prior to March 12, 1901? If he was, he was entitled to- his license; if he was not, then it was properly refused.

Relator bottoms his right to á license on< the Act of 1903, approved March 21, 1903, in words- as follows:

“It is not intended by this act to prohibit gratuitous service to and treatment of afflicted and this act shall not apply to commissioned surgeons of the United States army, navy and marine hospital service, nor to any student who has matriculated in a medical college on or prior to March .12, 1901, and it shall be the duty of said board of health on receiving a fee of fifteen dollars from said student to issue to him a license to practice medicine when said student presents a diploma from any medical college of this State.”

Under the facts of this case and under this law the only thing for respondents to do was to rightfully determine the question as to whether or not the relator was a matriculant in this school prior to March 12, 1901. On this question the respondents held adversely to relator. We are, therefore, required to face the question, as to whether or not this finding of the respondents is final and not subject to review in this court. Respondents claim that they exercised their discretion on this question and that their judgment is final. If so, there is an end to this cause. But in this we do not assent to the contentions of respondents. Discretions must always be reasonably exercised. As to whether or not they are reasonably exercised is a question for the courts. The statute requires the issuance of a license upon a proper showing and it is not within the power of the Board of Health to arbitrarily refuse it. In the case at bar the sole and only question for respondents to determine, under the admissions in the pleadings before us, was as to whether or not the relator had matriculated in the medical college mentioned above prior to March 12,1901. Now if the Board of Health, against, all the rules of evidence and against the great weight of the evidence, as evinced by this record, arbitrarily refused to grant the license, will mandamus lie to compel them to do so? This is the sole contention of respondents. They claim that they have exercised their best judgment, and having done so the incident is finally closed. Does the law place in the hands of administrative boards such arbitrary power? We think not. If so, the courts are not open to the aggrieved, if such there be, and this case is wrongfully here. If so, such boards can arbitrarily refuse any applicant the rights prescribed by the law, and he is without remedy. If so, such a board can hear the evidence, and against all of the evidence, place its ipse dixit, and refuse. to the applicant the privileges granted by the law.. Such a doctrine is not consonant with reason, and is not the law. Grant it, for the purposes of this ease, that these boards are clothed with discretionary powers, yet an unwarranted exercise of that discretion is a subject-matter for review. They are not judicial bodies. [State ex rel. v. Goodier, 195 Mo. l. c. 560.] In that case this court said: “The duties of the board are of an administrative or ministerial character, and therefore as long as its acts are within the scope of the exercise of a reasonable discretion it is free to act. [State ex rel. v. Gregory, 83 Mo. 123.] If, perchance, through a misunderstanding of the law, the board should refuse to perform a given duty, the writ of mandamus will right the wrong. [State ex rel. v. Lutz, 136 Mo. 633.] But tlie writ of prohibition. does not go against such a body; it goes only against a court or tribunal exercising judicial functions. We have very recently held that a writ of prohibition would not go against the Board of Election Commissioners, because although it exercised a large discretion (in the case there under review having to investigate and find from the evidence and decide which of two antagonistic sets of claimants was entitled to recognition as the lawful committee of a political party), yet it was the act of a ministerial and not a judicial body and the act to be performed was not a judicial act. [Kalbfell v. Wood, 193 Mo. 675.]

But even if it were a judicial tribunal, and its discretion was arbitrarily exercised, such action would be subject to review. We have always so held in matters of granting a continuance and similar matters, and a citation of cases would be superfluous. In the case at bar there is no remedy by appeal, and the only remedy is the one invoked in this case.

But beyond all this, and decisive of this case, the board acts ministerially in a matter of this kind. If the conditions exist, the license must be granted. If the conditions exist there is no discretion, but the license must Tbe issued. If the board cannot act judicially, as was held in the Goodier case, supra, this case resolves itself into the plain proposition, do or do not the conditions exist? If so the license must go. The great weight of the evidence shows that the relator-had matriculated prior to March 12, 1901, and- such being the case, the peremptory writ of mandamus must, go.

We conclude by saying that boards of this character, having merely, administrative and ministerial duties to perform,, cannot act arbitrarily, nor against the great weight of the positive testimony upon a given question, and if they do so act, there is redress for the party aggrieved, by an action of this kind.

From these views it follows that the peremptory writ should go, and it is so ordered.

All concur.