author: WALKER, P. J.

text:
    HARRY LAUGHLIN v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
    Division Two,
    July 16, 1918.
    1. DIRECTED VERDICT: Appellate Rule. The appellate court will not interfere with the action of the trial court in refusing to direct a verdict for defendants where there was substantial evidence to support a verdict for plaintiff.
    2. -: -: All Evidence Considered. The probative’ force of the substantial evidence necessary to sustain the verdict rendered for plaintiff is not to be tested by that adduced by him alone, although in 'passing on a demurrer thereto every reasonable inference deducible therefrom is to be taken as true; but it also may be aided by such of defendant’s evidence that helps to make out plaintiff’s case. /
    3. -: Inferences from Proven Facts: Proximate Cause. The testimony of plaintiff, a brakeman of a freight train which had stopped to take water, was that after it had started and was running at a rate of five, to seven miles per hour he attempted to swing himself upon a car by grasping an iron stirrup and was thereby lifted off the ground and while his feet were in mid-air they struck an obstacle, making a sound as of pieces of iron striking together; that the impact broke his hold on the stirrup, causing him to fall; and that when he recovered from a condition of unconsciousness he saw a keg of spikes near his feet. On the day of the accident the track at the point had been repaired, by taking out old and putting in new ties, and spikes had been pulled from the .old ties, and inferably placed in the keg. Held, that the jury were authorized in making the inference that the railroad trackmen had left the keg at the place where it was found after the accident, and that under the facts proved and circumstances shown the plaintiff’s fall was caused by his legs - striking the keg.
    4. -: Proximate Cause: Question for Jury. The determination of the proximate cause of an injury, whether it be the original negligence of one party or the intermediate negligence of another, is ordinarily one for the jury.
    5. -: -: Character of Evidence. Direct evidence to establish negligence is not required, but it may be sufficiently shown by facts and. circumstances. The proof must do more than raise a conjecture as to the cause of the injury; it must show with reasonable certainty that the cause for which defendant is sought to be held’liable produced the injury; but it is only when the evidence with all the inferences that the jury may reasonably draw therefrom is insufficient to support a finding for plaintiff, that the court is authorized to direct a verdict for defendant.
    6. CONTRIBUTORY NEGLIGENCE: Instruction: Burden: Restriction to Plaintiff’s Evidence. Under the Federal Employers’ Liability Act an instruction for plaintiff which places upon the defendant the burden of proving contributory negligence is not error. Nor under the circumstances of this case can defendant complain that to such instruction was not added the clause: “unless the jury find from plaintiff’s own evidence and the witnesses introduced by him that he was guilty of contributory negligence.” The instruction given did not specify what things were done or known by plaintiff, and if defendant desired an amplication or qualification of it in order to present its contention to the jury, it was its duty to ask a proper instruction, appropriate to the evidence and pleading, presenting that view.
    7. -: -: Pleading: Proof. If contributory negligence is not pleaded an instruction presenting it as a defense should not bo given; and if pleaded and there is no evidence to support the plea, no instruction on the subject should be given. Where defendant’s only plea of contributory negligence was that, if plaintiff was injured, it was the result of his own negligence in attempting to climb on a moving freight train without properly using the stirrup, an instruction declaring that he was guilty of contributory negligence if he did not intelligently use the means at hand to ascertain if there were any pitfalls or obstacles on the right-of-way against which his feet might strike as he attempted by grasping the stirrup ,to mount the moving car, would have been improper.
    8. NEGLIGENCE: Obstacle Beside Track. Where it is necessary for a brakeman of a freight train, in order to mount a moving car, to grasp an iron stirrup or hand-hold while running along-side the car, he is authorized in assuming that the right-of-way is clear of obstructions, such, for instance, as a keg of railway spikes.
    9. VERDICT: Excessive: $10,772: Simulated Injuries. Where there is substantial evidence that plaintiff’s injuries resulting from the accident were a bruise on the thigh and back, hydrocele of the right testicle, rupture of a ligament of the cervical vertebrae resulting in the depression of the seventh,vertebra, an injury to the, spinal cord, paralysis of the lower limbs involving the motor and sensory nerves, a subluxation of the lumber vertebrae, anesthesia of the muscles and nerves of the back extending from the shoulders to the waist line, a loss of the reflexes of the knees and feet, traumatic neurasthenia, and that the injuries are progressive and permanent, the court cannot say, even though other medical experts gave contradictory testimony,' that the injuries are feigned, or that a verdict for $10,772 is excessive.

      10.--: -: Federal Court Rule. In cases coming within the purview of the Federal Employers’ Liability Act, it is in harmony with the purposes of the statute to adopt the measure of damages sanctioned by the Federal courts, which is that no limitation is placed by the statute on the amount that may be recovered, except that of the damages actually sustained.
    XI. -: Measure of Damages: Other Cases as Guide. On account of the difference in the facts, there can be no hard-and-fast rule for the measure of damages in a personal injury case. A similarity in the awards in cases of like injuries may serve as a general guide, but it furnishes no exact rule by which the damages may be estimated in a given case.
    X2. EXPERT TESTIMONY: Conclusion. Where the hypothesis is based upon an established fact that plaintiff received certain injuries on a given date, it is not prejudicial error to permit the 'expert witness to testify that the condition will be progressive and he will be rendered helpless, if the testimony is followed by an instruction tbat “the opinions of expert witnesses neither establish nor tend to establish the truth of the facts upon which they are based,” and similar testimony was admitted without objection.
    i3. -: -: Waiver. A litigant will not be heard to complain of the admission of advisory expert testimony over his objection, where evidence of the same tenor has been admitted without his objection.
    Appeal from Bates Circuit Court. — Eon. G. A. Calvird, Judge.
    Ali'FIRMED.

      Cyrus Crane and Earvey C. Clark for appellant.
    (1) The court erred in not directing a verdict for defendant. Grant v. Railway i Co., 190 S. W. 586; Mc-Grath v. Transit Co., 197 Mo. 314; Coin v. Lounge Co., 222 Mo. 448; Coin v. Railway, 251 Mo. 13; Allen v. Railway, 189 Mo. App. 272; Hartman v. Railway, 261 Mo. 282; Trigg v. Land Co., 187 Mo. 227. (2) The verdict is excessive and unfair. (3) The court erred in admitting medical testimony offered by plaintiff. Glasgow v. Railway, 191 Mo. 347 (Syl. 6); Taylor v. Railway, 185 Mo. 239 (Syl. 2) and page 256; McAnany v. ITenrici, 141 S. W. 633; Halley v. Light Co., 115 Mo. App. 652; McCreery v. Railways Co., 221 Mo. 28. (4) Plaintiff’s instruction 4 was erroneous, (a) As to burden of proof. Engelking v. Railway Co., 187 Mo. 158; Kappes v. Shoe Co., 116 Mo. App. 154; Sprinkle v. Utility Co., 183 S. W. 1072; Federal Act; Holnaberg v. Railway Co., 153 N. W. 504; Culp v. Railway Co., 87 S. E. 187. (b) For other reasons. Williams v. Railway Co., 257 Mo. 87; Hearst v. Railway Co., 163 Mo. 309.

      W. O. Jackson and G. 8. Denison for respondent,
    (1) The plaintiff’s evidence was sufficient to prove the negligence charged, and to support the verdict returned.. St. L. & S. F. Ry. Co. v. Clampett, 154 Pae. (Okla.) 43; 29 Cyc. 622; Caudle v. Kirkbride, 117 Mo. App. 412; Jones v. K. C. F. S. & M. R. Co., 178 Mo. App. 528; Gannon v. Gas Co., 105 Mo. 502; Heibert v. Telephone Company, 133 Mo. App. 558; Richey’s Fed. Emp. Liab. Act (2 Ed.), pp. 332 and 333; Myers v. Pittsburg Coal Co., 233 U. S. 193, 58 Law. Ed. 911. (2) The verdict of the jury was neither excessive nor unfair. Kane v. Mo. Pac. Ry., 251 Mo. 13; Richey’s Fed. Emp. Liab. Act (2 Ed.), sec. 179; Nashville Ry. Co. v. Henry, 164 S. W. 310; Vicksburg Ry. Co. v. Putnam, 118 U. S. 445, 30 Law. Ed. 257; Chicago Ry. Co. v.. Devine, 239 U. S. 52, 60 Law. Ed. 140; Newcome v. N. Y. C.' R. Co, 182 Mo. 687; Corby v. Mo. & Kans. Tel. Co., 231 Mo. 417; Copeland v. Wabash Railroad Co., 175 Mo. 650; Griffith v. Railroad Co., 98 Mo. 168. (3) The court did not err in admitting medical testimony complained of. Fullerton v. Fordyce, 144 Mo. 519; Halfestein v. Medart, 136 Mo. 595. (4) Plaintiff’s instruction 4 was not erroneous. Cent. Vermont Ry. Co. v. White, 238 U. S. 507, 59 Law. Ed. 1433; 111. Cent. R. Co. v. Skaggs, 240 U. S. 66, 60 Law. Ed. 528; C. & O. Ry. Co. v. Cooper, 181 S. W. (Ky.) 933-; Seaboard Air Line v. Renn, 241 U. S. 295 ¡ 60 Law. Ed. 1009; Richey’s Fed. Emp. Liab. Act (2 Ed.), p. 354; Padgett v. Seaboard Air Line Ry., 236 U. S. 672, 59 Law. Ed. 780; Robert’s Inj. Interstate Em., p. 317; Deweese v. Merrimac Mining Co., 54 Mo. App. 476, 128 Mo. .426, R. S. 1909, sec. 1850; Matthew v. Mo. Pac. Ry., 142 Mo. 666; Sherwood v. Railroad Co., 132 Mo. 344; Dandt v. King, 124 Mo. 105; Heahl v. St. L. Ore Co., 109 Mo. 325.
   WALKER, P. J.

This is an action for personal injuries. Upon a trial, a judgment was rendered for the plaintiff, from which this appeal has been perfected. The action was brought under the Federal statute in the circuit court of Bates County in February, 1914. The plaintiff was, at the time of' the alleged injury, a head brakeman on one of defendant’s interstate trains. At about three o’clock a. m., October 6, 1913, the train upon which he was employed stopped to take water at a tank north of Stotesbury, a station on the defendant’s line in this State. Plaintiff, in the discharge of his duties, got off of the train when it stopped and went back along the side of it towards the rear end to adjust a hot box. After he had performed this duty, he proceeded a short distance further towards the rear end of the train, in the further discharge of his duties, when the engineer whistled off brakes. Plaintiff received a signal from the rear that the train would proceed, which he communicated to the engineer. The train moved forward. He did not, until a number of cars had passed him, attempt to get on the train. When he' did, it was moving at the rate of about five or seven miles per hour. He cárried a lantern, the light of which extended at least five feet in front of him.' While running along the sida of the train, he caught hold of an iron stirrup on the side of the car, preparatory to swinging onto same, when his foot struck an obstacle, which broke his hold on the stirrup of the car and he fell to the ground, receiving the injuries of which’ he complains. The train proceeded on its way for about three miles to a station called Amos, when he was missed. The crew detached the engine, and returning upon it, found him lying by the side of the track near where the stop had been made to taken water. His respiration was almost imperceptible and his pulsation faint. He regained consciousness when his head was bathed , with water. His injuries resulting from this fall we will discuss at length in the opinion. A keg about one-third full of.railroad' spikes was found some three or four feet south of where he fell, and from three to four and one-half feet from the rail. The keg appeared to have been moved about six inches, from where it had originally stood in the direction the train was going. The car upon which plaintiff was attempting to climb was about eight feet in width, and the distance between the rails over which it was moving at the time of the accident was four feet and eight inches. The body of the car, therefore, projected over and beyond the rails on each side of the track from twenty to twenty-six inches. In the attempt to swing upon the moving car by catching hold of the stirrup, plaintiff was lifted off of the ground and his feet were in mid air, at the time they struck the keg, at a distance of from ten to eighteen inches from a vertical line drawn from the . outside of the car to the ground. A fact, indicative of the reason for the location of the keg of spikes near the track, was the presence the day before the injury of a pile of new ties which, on the day of the accident, had been replaced by a pile of old ties; the new ties having been placed in the track at points near where the keg was standing. The spikes in the keg were inferably those not needed in replacing the ties, or those that had been withdrawn from the old ties. Immediately after plaintiff’s injury, the fireman of the train on which the plaintiff was employed, under the orders of the conductor, moved the keg further away from the track. There is a conflict in the testimony of the witness of the respective parties in this regard. As a result of the trial, a verdict was returned in favor of plaintiff for $10,772.

Defendant’s assignments of error are (1) the trial court’s failure to direct a verdict for defendant at the close.of plaintiff’s testimony or at the close of the entire testimony; (2) the giving at plaintiff’s request, of instruction numbered IV; (3) refusing to set aside a grossly excessive verdict.; and (4) the admission of improper evidence.

I. It has become axiomatic in onr procedure that we will not interfere with the action of a trial court in refusing to direct a verdict where there is any substantial evidence to sustain the same. [Twentieth Cent. Mach. Co. v. Excelsior Co., 200 S. W. 1079; Dunn v. Railroad, 192 Mo. App. 260.] The probative force of such evidence is not to be tested by that adduced by plaintiff alone, although every reasonable inference arising therefrom is to be taken as true; but it may also be aided by any of defendant’s evidence that helps to make out plaintiff’s case. [Hall v. Mfg. C. & C. Co., 260 Mo. 1. c. 365; Stauffer v. Railroad, 243 Mo. 1. c. 316.] Plaintiff’s testimony was, that as he attempted to swing himself upon the car by grasping the stirrup, his feet or legs struck an obstacle, making a sound as of pieces of iron striking together; that the impact broke his hold on the car and he fell to the ground; that when he recovered from the condition of unconsciousness caused by the fall, he saw a keg of spikes near his feet. These spikes had been pulled from old ties in the track which had been removed and new ties and spikes substituted therefor. A short time before the accident, the track had been repaired at that point. The proof of this betterment, as explanatory of the reason for the presence of the keg and its contents, is aided by the physical fact that old ties that had been used were lying along the track. The inference made by the jury was, that the keg had been left at the point where found, as testified to by plaintiff, and that it had been so left by defendant’s trackmen. Having made this inference, they were not required to.indulge in speculation to determine if it might not have been placed there by some one other than the defendant. [Myers v. Pittsburg Coal Co., 233 U. S. 1. c. 193, 58 Law. Ed. 911.] Generally, the determination of the proximate cause, of an injury, whether it be the original negligence of one party or the intermediate negligence of another, is ordinarily one for the jury. Direct evidence to establish this negligence is not required, but it may be sufficiently shown by inferences from the surrounding facts and circumstances. Proof of this nature, however, must do more than raise a conjecture as to the cause of the injury; it must show with reasonable certainty that the cause for which the defendant is sought to be held liable produced the injury. It is only when the evidence with all of the inferences that the jury may reasonably make therefrom, is insufficient to support a finding for the plaintiff, that the court is authorized to direct a verdict for the. defendant. A case should, therefore, be left to the jury under proper instructions, unless the conculsion follows, as a matter of law, that no recovery can be had on any view that may be taken of the facts which the evidence tends to establish. [Hall v. Mfg. C. & C. Co., 260 Mo. 1. c. 365; Wolfgram v. Mod. Wood. Am., 167 Mo. App. 220; James v. Mut. Reserve etc. Assn., 148 Mo. 1; Lac. Nat. Bk. v. Richardson, 156 Mo. 270; Deere Plow Co. v. Sullivan, 158 Mo. 440.] Under these general rules the jury was authorized in making the inference under the facts proved and the circumstances shown that the plaintiff’s fall was caused by his striking against the keg, and that the trackmen of the defendant - left the keg and its contents at the place where is was found after plaintiff’s injury. This accords with reason, and excludes the inference of an impact with another object, or that the keg may have been left, at the point where found, by others than defendant’s agents. Numerous reasons support this conclusion: the absence of any other obstruction that could have caused the injury; the evident recent improvement of the track; that the spikes were used only in this character of work; and that the keg and its contents were owned by and in the possession of the defendant. The evidence to sustain the verdict having been found sufficient under the rules stated, the alleged conflict in the testimony, however sharp it may be, cannot be interposed here to affect the' verdict. This, for the reason that in demurring to the testimony^ the defendant admitted the truth of plaintiff’s proof not only as to the affirmative facts adduced, hut of every inference in their favor that the law will warrant. [Hanser v. Bieber, 271 Mo. 1. c. 335; Meenach v. Crawford, 187 S. W. 1. c. 882; Williams v. Railroad, 257 Mo. 1. c. 112.] We decline, therefore, to interfere with the verdict on the ground that the trial court did not sustain a demurrer to the evidence.

II. The giving of instruction numbered IV, at the request of plaintiff, as modified by the trial court, is complained of. It is as follows: “You are instructed that before the plaintiff can be said to have , -,. been guilty of contributory negligence, contributing directly to his own injury, if any, it must be shown that he knew, or had reasonable opportunity of knowing of the dangerous condition, if any, of the roadbed of which he complains, and' appreciated, or under the exercise of ordinary care and prudence, should have appreciated the danger, if any, encountered, in time to have prevented injury, if any, to his person.” To this was added by the court, the following: “And you are further instructed that the burden of proving contributory negligence on the part of the plaintiff is upon the defendant.” The burden of defendant’s complaint is directed against the addition to the instruction. This is urged as error, because it was not supplemented by the following: “unless the jury finds from plaintiff’s own evidence and the witnesses introduced by him that he was guilty of contributory negligence.”

This case was tried under the Federal Employers’ Liability Act. The United States Courts have uniformly held in proceedings under this act, that as a matter of general law the burden of proving. contributory negligence is on the defendant even in trials in states where it is held that the burden is on the plaintiff. [Central Vermont Ry. Co. v. White, 238 U. S. 507, 59 Law. Ed. 1433; Seaboard Air Line Ry. Co. v. Moore, 228 U. S. 433, 57 Law Ed. 907.] No testimony was offered by defendant at^he trial to sustain the contention here made, nor is it intimated in its brief as to the respect in which the plaintiff was guilty of contributory negligence; nor did the defendant ask any instruction or request the modification of the one given to cover the alleged error. Under this state of facts, where, as here, the instruction did not state what the plaintiff did, or knew, or was in a position to know, the failure of the court to give the same as now contended for, is not error. If the defendant desired an amplification or qualification of the instruction in order to present its point of view to the jury, an appropriate request therefor should have been made. If asked, its propriety then would have depended primarily upon whether there was testimony upon which it could be predicated. [Ill. Cent. R. R. Co. v. Skaggs, 240 U. S. 66, 60 Law Ed. 528.]

The Court of Appeals of Kentucky has recently considered the question here involved. Its apposite 'reasoning merits repetition. It is as follows: “But notwithstanding the Federal statute and the right thereunder to plead and rely upon the defense of contributory negligence, we think it is obvious that when there is no evidence tending' to show that the plaintiff was guilty of contributory negligence, the jury should not be instructed on this subject, although that defense may be set up in a pleading. It is just as essential that there should be proof of contributory negligence as that there should be an allegation relying on this defense. If contributory negligence is not pleaded, of course an instruction presenting this defense should not be given, and if pleaded, and there is no evidence to support the plea, there should be no instruction.” [Chesapeake & Ohio Ry. Co. v. Cooper, 181 S. W. (Ky.) 933.] But, if the instruction as modified by the court be subject to objection standing alone, its alleged omission is cured by the instructions taken as a whole. Those given for the plaintiff about which there is no question, and hence, not set forth herein, instructed the jury fully as to the facts necessary to be proved to enable plaintiff’s damages to be determined, taking into consideration the element of contributory negligence. In addition, defendant’s instructions admonished the jury that before the plaintiff could recover, it was necessary that it be shown that he had exercised the ordinary care and caution of a reasonably prudent man in boarding’ defendant’s train. Defendant’s concrete contentions in regard to the vice in instruction numbered IV are, that it did not enable the jury to determine whether the plaintiff intelligently employed the means at hand to ascertain whether his footing was secure, and that there were no pitfalls or obstacles in his way, and whether or not it was negligence on his part to mount a moving train when he could have mounted it while standing still. Let us see if these contentions are well founded. Under the issue made by the pleadings, it devolved upon the plaintiff to prove that his injury Avas due to the negligent leaving of the keg of spikes upon its right-of-way by the defendant. Absent the keg, there could have been no negligence on the part of the defendant, and as a consequence, no injury to plaintiff for which damages might be assessed in his favor. The ground of negligence being thus limited, the plaintiff could not be held to have contributed to same, unless, in attempting to mount the train with knowledge of the keg’s presence, he struck it and was thereby injured. Only upon this showing could the damages have been mitigated under the Federal Act, on account of plaintiff’s contributory negligence. But defendant’s plea of special contributory negligence on the part of the plaintiff was to the effect that, if the latter was injured at the time and place alleged, it was the result of his own negligence in attempting to-climb on a moving train without properly using the stirrup. If this had been satisfactorily shown, it would have constituted a failure of such proof as is necessary to authorize a recovery, due to plaintiff’s sole and not contributory negligence. There is, therefore, nothing in defendant’s answer authorizing the modification of the instruction as now contended for. The duty of the jury upon a failure of proof due to plaintiff’s sole negligence was fully presented by instructions given for the respective parties.

A brief resume of the facts demonstrates the applicatory propriety of these instructions. Plaintiff was injured while in the discharge of his duties as a railroad brakeman, in attempting to mount a moving train. To accomplish this, it was necessary for him to grasp a stirrup or hand-hold, on the side of a car, and mount the same while running along-side of the train. In so doing, he was authorized in assuming that the right-of-way was clear of obstructions. Clothed with this presumption, it was not necessary for him to make an inspection of the right-of-way before attempting to climb upon the car. If this had been attempted, at the time of the accident, which was three o’clock in the morning, with his lantern light limited to a radius of five feet, such attempted inspection would have been ineffectual. Further than this, it would not have been possible for him to make such inspection, because when he grasped the stirrup to mount the car, his face was, of necessity, turned towards the train, and his vision thus directed. Such being the physical conditions, the existence of which, where not affirmatively shown, may be deduced from uniform human experience under like circumstances, the question of the plaintiff not having used means to find out the condition of the surrounding circumstances, as urged by the defendant, is eliminated from consideration. There was no evidence that the plaintiff did not use his lantern as far as it would afford aid in determining his surroundings, or that he did not attempt to mount the train in a proper manner. No defense, however, is urged upon his failure in either of these respects. The instructions given were ample to cover all of these alternatives. We are, therefore, authorized in assuming that the jury, in their deliberations, took into consideration these and all other questions submitted to them.

We have carefully examined the cases of Williams v. Railroad, 257 Mo. 87, and Hurst v. Railroad, 163 Mo. 309, cited by defendant, and find that the facts in each aré so dissimilar from those in the case at bar, that the conclusions reached therein cannot properly be urged in support of the contention here made. There is no merit, therefore, in the objections urged to instruction numbered IV as given, and we so hold.

III. The contention is made that plaintiff’s injuries were feigned and that his physical condition subsequent to the accident was due to a prior condition of impaired health. We have reviewed the testimony with' care this regard. Except to illustrate the contrariety of conclusions that- may be reached by learned members of the medical profession as to the pathological condition of a subject, a detailed statement of this testimony would serve no useful purpose. A summary of same, which we regard' as sufficient for a determination of this contention, shows that plaintiff’s injuries resulting from the- accident were a bruise on his thigh and back; hydrocele of the right testicle; rupture of a ligament of the cervical vertebrae resulting in a depression at the seventh vertebra; an injury to the spinal cord; paralysis of the lower limbs, involving the motor and sensory nerves; a subluxation of the lumbar vertebrae; anesthesia of the muscles and nerves of the back extending over the back from the shoulders to his waist line.; a loss of the reflexes of the knees and feet; traumatic neurasthenia; and that the injuries are progressive and permanent.

In the enactment of the Federal Employers’ Liability Statute, it was evidently the intention of Congress to render the liability in cases arising under the law uniform throughout the United States. The meas-sure of damages, therefore, in such cases, is to be determined according to the provisions of the act itself and the general common law as administered by the Federal courts, unaffected by State - legislation and the decisions of State courts, except as they may announce the common law. While, therefore, the difference between the'measure of damages as' determined by our courts and that of the Federal courts is but slight, it is more in harmony with the purpose of the statute to adopt, in cases coming within its purview, the measure of damages sanctioned by the Federal courts. This course has been pursued in other jurisdictions (Nashville Railway v. Henry, 158 Ky. 88, 164 S. W. 1. c. 314; Panhandle Railway v. Brooks, 199 S. W. (Tex.) 665), and is recognized as the proper rule by. the Federal courts (Seaboard Air Line Ry. Co. v. Horton, 233 U. S. 499, 58 Law Ed. 1068, L. R. A. 1915C 1, Ann. Cases, 1915B 475; Chicago Ry. Co. v. Devine, 239 U. S. 52, 60 Law Ed. 40; Vicksburg Ry. Co. v. Putman, 118 U. S. 545, 30 Law Ed. 257).

No limitation is placed by the statute on the amount that may be recovered, except that of the damages actually sustained. [Chicago Ry. Co. v. Devine, supra; Devine v. Chicago, Etc., 266 Ill. 248; Thornbro v. Kan. Railroad Co., 91 Kan. 684, Ann. Cas. 1915D 314; Nash v. Minneapolis Ry. Co., 131 Minn. 166; Grybowski v. Erie Railroad Co., 95 Atl. (N. J.) 764.] There cannot be, on account of the difference in the facts, any hard- and-fast rule for the measurement of the damages. A similarity in the awards in cases of like injuries may serve as a general guide, but it furnishes no exact rule by which the damages may be estimated in a given case. [St. Louis Railroad Co. v. Craft, 115 Ark. 483, 171 S. W. 1185, affd. 35 Sup. Ct. R. 704.] The most reliable rule for the guidance of an appellate court in determining whether a verdict is excessive, is that, if sustained by substantial evidence, it will not be disturbed, unless the, amount is such as to shock the judicial conscience, or there are indications that the jury was swayed by passion, prejudice, or in some way unduly influenced.

Viewing this verdict, therefore, in the presence of the catalogue of ills suffered by the plaintiff, as a result of his injury and, measuring the jury’s estimate of his damages by the findings in other as nearly similar cases, of which the books bear witness, we are not impressed with the force of the contention that the verdict is sq excessive as to run counter to the rule stated. On the contrary, it is in our opinion, in the face of the facts as to plaintiff’s condition, but a conservative compensation for the damage sustained. We are mindful of the fact that there was a conflict in the testimony of the experts as to the physical condition of the plaintiff. It was, however, within the province of the jury to- determine which of the conflicting theories was correct. [Kane v. Railroad, 251 Mo. 13, 157 S. W. 644.] They have so determined and in the absence of even an intimation of bias, or other influence than the force of the facts, we will not disturb their finding. .

IV. It is urged that error was committed in the admission of the testimony of one of the physicians introduced by the plaintiff. This inquiry was propounded to him: “Doctor, supposing that the injury you found was the result of an injury which happened on the 6th day of October, 1913, have you a judgment as to whether or not that condition will be progressive?” After the interposition of a general objection by counsel for defendant, which would not authorize a review of this contention unless the inquiry was wholly inadmissible, the witness answered: “I think it highly probable that the trouble will progress, in view of what I have seen and the length of time he was hurt.” The further question was asked the witness: “and if progressive, what would be'the result?” To which he answered: “He will be rendered helpless.” The objection to this testimony is that it permitted the witness to .express his judgment on a probability or to base an opinion upon an opinion. The hypothesis upon which the inquiry was made was based not upon an opinion, but an established fact, viz., that the plaintiff had struck the keg in attempting to mount the car, and had thereby sustained the injuries which had been found by the witness upon a personal examination, as a physician, to exist. At best, testimony of this character is advisory and not conclusive. Cognizable of this fact, the court gave the jury the usual instruction as to the weight to be given to the testimony of witnesses of this class. They were told, among other things, in the stereotyped language usually employed in this instruction: “that the opinions of expert witnesses neither establish nor tend to establish the truth of the facts upon which they were based.” Thus guided, and otherwise fully instructed as to their province as judges of the weight and credibility of all the witnesses who had testified, the possibility of their being prejudiced or influenced one way or the other in reaching their verdict by the testimony of this witness, was exceedingly remote, if it existed at all.

However, the force of defendant’s contention in this regard is dissipated when we find from the record that the same inquiries here complained of were propounded to and answered in a like manner by two other physicians, and no objections were interposed to their testimony. One will not be heard to complain of the admission of testimony over his objection, where evidence of the same tenor has been admitted without his objection. [Masonic Mutual v. Lackland, 97 Mo. 137; McPherson v. Andes, 75 Mo. App. 204; San Antonio v. Potter, 31 Tex. Civ. App. 263; Douglass Land Co. v. Thayer Co., 107 Va. 292; Galveston, etc., v. Baumgarten, 31 Tex. Civ. App. 253.]

This contention, therefore, having lost its force on account of the attitude in regard thereto of counsel for defendant at the trial, it is not necessary to discuss its alleged inadmissibility on the ground that it in any wise invaded the province of the jury, as we held in Deiner v. Sutermeister, 266 Mo. 505 and Castanie v. U. Rys. Co., 249 Mo. 192. The contention is, therefore, overruled.

It follows, therefore, that the judgment should be affirmed and it is so ordered.

All of the judges concur.


source: Caselaw Access Project

author: WHITE, C.

license: Public Domain

text:
    THE STATE v. O. L. KOONTZ, Appellant.
    Division Two,
    July 16, 1918.
    1. UNCONSTITUTIONAL STATUTE: Application. A statute may be unconstitutional as to part of its subject-matter and valid in its application to other parts.
    2. INTOXICATING LIQUOR: Delivery by Purchaser’s Agent. Section 2 of the Act of 1907. (Sec. 7227, R. S.. 1909) made unlawful the transfer of the possession of intoxicating liquor from one person to another, in a Local Option county, when by the act of transfer there was no change of ownership. That section made the delivery to the purchaser by the purchaser’s own agent a violation of its provisions.
    3. -: --: Direct Delivery to Purchaser by Carrier. Section 7228, Revised Statutes 1909, is an exception to the operation of Section 7227, and relieves of its unlawful character the delivei’y of intoxicating liquor by one person to another in a Local Option county, where the deal, or order, is direct' between the seller outside and the purchaser inside such county, and where the agency of no person who would profit by the traffic except as a common carrier intervenes between such seller and purchaser.
    Appeal from Cass Circuit Court. — Hon. Ewing Cockrell, Judge.
    Reversed.

      J. W. Jamison and J. 8. Briefly for appellant.
    (1) Martin had the right to order and have sent direct to him intoxicating liquors for his own or family use. Sec. 7228, R. S. 1909; State ex rel. v. Brewing Co., 270 Mo. 109. (2) Inasmuch as the beer was both ordered and received by Martin in a lawful way and for a lawful purpose, neither the railway company, nor its agent, Koontz, violated any statute in connection with the transportation and delivery of it to Martin. State v. Brown, 188 Mo. App. 248; State v. Rosenberger, 212 Mo. 648; State v. Theodore, 191 S. W. 422; Southern Express Co. v. State, 66 So. (Ala.) 115. (3) The trial court committed error in holding and declaring at the request of the State and of its own motion that Sec. 7228, R..S. 1909, was unconstitutional, and, therefore, void, and in giving, over appellant’s objections and exceptions, declarations of law to that effect, and in refusing appellant’s declaration in the nature of a demurrer to the evidence. State v. Theodore, and other authorities cited above.

      Frank W. McAllister, Attorney-General, Henry B. Hunt, Assistant Attorney-General, J. B. Nicholson of counsel, for respondent.
    (1) The title of an act is the conclusive index to the legislative intent; and the body of the act must be germane to the subject designated in title. Sec. 28, Art. 4, Mo. Cons.; Laws 1907, p. 231; City of Kansas v. Payne, 71 Mo. 162; State v. Coffee & Tea Co., 171 Mo. 642; State v. Burgdoerfer, 107 Mo. 30. (a) The title need not express limitations in the body of the act. 36 Cyc. 1029; 'Neuendorff v. Duryea, 69 N. Y. 557; Mt. Vernon Co. v. Frankfort Co., Ill Md. 568. (b) But where the title is restrictive, the act must be also. 36 Cyc. 1029; State v. Rawlings, 232 Mo. 557; Ex parte Knight, 52 Fla. 147; West v. State, 50 Fla. 160; Railway v. Byrne, ■*19 Tenn. 289. (2) Sec. 7228, R. S. 1909, has reference solely, to Section 7226. Said Section 7226 has been declared unconstitutional; hence, Section 7228 is unconstitutional and falls with Section 7226. State v. Rawlings, 232 Mo. 558; State v. Theodore, 191 S. W. 424. (3) The defendant, agent of the railway company, is liable, as he held for and delivered the goods to the consignee. Hays v. State, 13 Mo. 246; State v. Brown, 151 Mo. App.'351; State v. Boehler, 148 Mo. App. 620; State v. Handler, 178 Mo. 38.
   WHITE, C.

The appellant was found guilty of delivering1 liquor to another person, in violation of Section 7227, Revised Statutes 1909. He claimed in defense that he was protected by the exception mentioned in Section 7228. The Circuit Judge held that the latter section afforded no protection, because unconstitutional, and the appeal was to this court on account of the constitutional question.

The sections mentioned, together with Section 7226, are a part of the dramshop law of this State, enacted in 1907. The Act of 1907 contained three sections which are now sections 7226, 7227 and 7228, Revised Statutes 1909 (Laws 1907, p. 232), as follows:

“Section 1. (7226). It shall be unlawful for any person or persons not a licensed dramshop-keeper - or by law authorized to sell liquor as a wholesaler, to order for, receive, store, keep or deliver, as the agent or otherwise, of any other person, intoxicating liquors of any kind.

“Section 2. (7227). No person shall keep, store or deliver for or to another person, in any county that has adopted or may hereafter adopt the Local Option Law, any intoxicating liquors of any kind whatsoever.

“Section 3. (7228). Provided, however, that nothing in this act shall be construed to prohibit any .person from ordering liquor for his own or family use, where such liquor is sent direct to the person using same.”

In the Revision of 1909, the words “this act” were changed to read (Sec. 7228) “the two next preceding sections. ’ ’

There was an agreed statement of facts in the circuit court, which set out that the Local Option Law was in force in Cass County; that the defendant, O. L. Koontz, was agent of the Missouri, Kansas & Texas Railway Company, and as such delivered one case of beer to one Charles Martin in Cass County, “for the personal use of said Charles Martin,” and that “said liquors had been ordered by the said Charles Martin of and from George Muehlbach Brewing Company, a liquor dealer at Kansas City, Missouri,”,and were by'that company consigned to the said Charles Martin by a freight shipment over the lines of the said Missouri, Kansas & Texas Railway Company.

I. The defendant claims that he was within the proviso of Section 7228, because the liquor which he delivered was ordered for the personal use of Charles Martin to whom he delivered it. The Circuit Court held that section unconstitutional, because by its terms the proviso related only to Section 7226; that Section 7226 having been declared unconstitutional by this- court in the case of State v. Rawlings, 232 Mo. 544, the proviso therefore would fall with the section to which it relates. The reason Section 7226 was declared unconstitutional was because the subject-matter covered by that section was not clearly expressed in the title of the bill when the Act of 1907 was passed. It is only necessary to refer to the Rawlings case for an explanation of the ruling.

Now it is obvious if Section 7228 refers only to Section 7226, then it does not matter for the purpose of this case whether it is unconstitutional or not, because this case arises under Section 7227, which was declared in the Rawlings case to be constitutional. But if 7228 relates to 7227, and provides an exception to the operation of that section as well as of 7226, then to that extent it is not necessarily unconstitutional, for a statute may be unconstitutional as to part of its subject-matter and valid in its application as to other parts. [6 R. C. L., p. 130.] It is important, therefore, not only to determine whether Section 7227 applies to this case, but also whether Section 7228 relates, as a proviso, to Section 7227 as well as to Section 7226.

II. Doubtless the statute under consideration was enacted to reinforce the Local Option Law. Already Section 7243, Revised Statutes 1909, made it unlawful for any person in a Local Option county to ‘ ‘ direct- or indirectly sell, give away, or barter in any manner whatever any kind of intoxicating liquors.” This language is comprehensive enough to cover every case where the ownership of property of that kind is passed from one to another; intoxicating liquor could not be transferred by sale or by gift, directly or indirectly, in any manner whatever. All that remained of the. traffic in such liquors, not prohibited by the statute, was the transfer of possession from one- person to another, and the keeping for the use of another person, without a change of ownership.

The Act of 1907 then evidently was intended to reach every case of such transfer. Section 2 (7227) covers the case of a person who keeps or delivers liquor for another person, or to another person whether or not title or right of property is transferred by the act. This would include the case of any person who acts as the agent of the seller or the buyer,- when the title has already passed.

This court construed the Local Option Law several times before Act of 1907 was passed. It was held in several cases that where intoxicating liquor was shipped by a common carrier, from a county or city in the State where it was lawful to sell it, to some person in a Local Option county, the shipper was not guilty of a violation of the law, because the “delivery” was at the point of shipment where it was lawful to sell it, and not at the point of destination where it was unlawful to' sell it, that the carrier was the agent-of the purchaser and not of the seller. [State v. Wingfield, 115 Mo. 428.] This was held to be the case even where the liquor was consigned O. O. D. [State v. Rosenberger, 212 Mo. 648, 1. c. 654.] Under those rulings the delivery to Martin was in Kansas City where he ordered the beer consigned to him, The carrier then became and was his agent in carrying the liquor from Kansas City to Cass County, where he received it. It has been held that delivery to the purchaser by the purchaser’s own agent, is a violation of the act, as will be seen by the cases cited below. The defendant was guilty, of the violation of Section 7227, unless Section 7228 recites an exception to its operation.

III. The case of State v. Theodore, 191 S. W. 422, cited by respondent, was where the defendant was charged with a violation of Section 7227. He kept and stored a quantity of liquor in Barton County .This court reversed a conviction for violation of Section 7227 on the ground that the liquor which he kept and stored was not for delivery to any person in Barton County, a Local Option county, but was stored and kept for the purpose of conducting a mail order business and delivery in Kansas. The opinion indicated that the section (7228) does not constitute a proviso to Section 7227, and held the defendant not guilty, not because he was protected by Section 7228, but because his act is not covered by Section 7227. The observations regarding Section 7228 were obiter and the majority of the court concurred only in the result.

This court, in the case of State v. Burns, 237 Mo. 216, I. c. 223, held the defendant guilty on this state of facts: He was going from Mt. Vernon, Lawrence County, to a neighboring town, when a friend named Hixon handed him a half dollar and requested him to purchase a pint of whiskey. Defendant purchased the whiskey and when he returned to Mt. Vernon- he was arrested before delivering it, for violation of Section 7227 in keeping it for the purpose of such delivery. There the defendant was the agent of the purchaser and the whiskey was Plixon’s property.

The opinion mentioned Section 7228, apparently assuming it to be valid as a proviso to Section 7227, and uses this language (237 Mo. 1. c. 222-3):

‘ ‘ True, the whiskey in question was wanted by Hixon for his own use. It is also true, as argued by the counsel for defendant, that if, under the last named section, ‘a person has a right to order whiskey and have it sent to him, some person or persons must be allowed to bring it. ’ The statute, however, plainly contemplates, by the expression ‘where such liquor is sent direct to the person using same,’ that the buyer shall deal in his own name with the seller, and that the seller shall send the whiskey directly to the buyer, knowing to whom he is sending it. Whether the order goes by mail or by messenger may not be important, nor whether the article is sent by express or by messenger, but'it is important that the transaction should be between the one' who orders for his own use and the dealer who fills the order. Otherwise, one could traffic in whiskey in defiance of the statute by securing his customers and payment in advance, then buy the whiskey in his own name, deliver it to his respective customers and, if charged under the statute, say, ‘I was merely a messenger'for persons who ordered for their own use.’ ”

The court then says (p. 223): “Doubtless a mere carrier or messenger, in the case of a direct- order as explained above, may retain lawfully, possession for such time as is convenient and customary for delivery.”

The Kansas City Court of Appeals in case of State v. Lane, 193 S. W. 948, held the defendant guilty under a state of facts quite similar to those in the Burns case. The court indicated that Section 7228 furnished an exception “if the transaction showed that the defendant was a ‘mere messenger’ delivering the liquor in a direct transaction between the seller and the purchaser or between the receiver and the furnisher of the liquor..”

In the ease of State ex rel. v. Brewing Company, 270 Mo. 100, the prosecuting attorney of Adair County sought to restrain the defendant Brewing Company from shipping beer into Adair County, a Local Option county. The defendant had its place of business at Quincy, Illinois, the liquor in question was consigned to' the railroad company and sent in a package C. O. D. to a person in Adair County. The court cited the Rosenberger case, supra, and held that the liquor was delivered to the purchaser at the point of shipment in Illinois, and found the defendant not guilty, because the delivery of the beer was not in Adair County, and “because Section 7228, Revised Statutes 1909, authorized any person in Adair County to order liquor for his own use, or that of his family when it is sent directly to him.” In the case of State v. Brown, 188 Mo. App. 248, the defendants were charged with violation of Section 7227. They hauled several barrels of merchandise from the railroad station to a drug store at Worthington, in Adair County, a Local Option county. It was claimed that the barrels contained bottled beer, but they bore no external evidences of the nature of their contents. The defendants delivered the merchandise in ignorance of what the barrels contained, and they were held not guilty for that reason. The court cites the Burns case, supra, and uses this language, 1. c. 251: “Defendants, at the time of their arrest, being in possession of the beer, not as common carriers, but' as servants of the purchaser, were ‘keeping it’ within the prohibition of the statute, providing they knew what they were transporting and intending to deliver to their employers was beer, imported into the county for the purpose of being disposed of in violation of the Local Option Law.”

The observations of this court in the Burns ease, and the Brewing Company case, supra, indicate' a construction by this court of Section 7228, which makes it an exception to the operation of Section 7227, as well as Section 7226. It reaches a case of delivery by one person to another in a Local Option county where the deal, or order, is “direct” between the seller outside and the purchaser inside the dry territory, where the agency of no person who would profit by the traffic except as a common carrier, intervenes between such seller and purchaser. It would apply where the order is direct and the shipment direct, by the purchaser’s agent, as in this case.

The judgment is reversed and the defendant discharged.

Boy, C., concurs.

PER CURIAM: — The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


author: FARIS, J.

text:
    THE STATE ex rel. M. O. DANCIGER & COMPANY v. PUBLIC SERVICE COMMISSION et al., Appellants.
    Division Two,
    July 16, 1918.
    1. PUBLIC SERVICE: Motive for Discontinuance: Law of Case. The motive for discontinuing the supply of electricity to citizens of a town by a firm which for sometime had essayed to furnish it to some of them, is of no concern to the courts in determining whether said firm had a legal right to discontinue the service. If the citizens are not under the law entitled to the service, no motive, however reprehensible, for discontinuing it, can serve as a sufficient reason to any court to compel a restoration of it.
    2. .-:-: Public Utility. If the firm which had essayed to sell electricity to a limited portion of the citizens of a town is a public utility, no ill-feeling growing out of a Local Option election and no lack of facilities to furnish the service, will serve as an excuse for discontinuing it, because the Public Service Commission has power to compel the firm to provide reasonable and ample facilities; but if it is not a public utility, no excuse is necessary.
    3. -: Public Utility: Corporate Powers: Ultra Vires. In determining whether or not a corporation is a public utility, the important thing is not what its charter says it may do, but what it actually does. If the things it does constitute it a public utility, it will not be heard to say that those things are ultra vires of its charter powers, or to urge its own wrongful aggressions to escape its obligations to render the public service.
    4. -: -: Definition: For Public Use Understood. While the statute defining an “electrical corporation” and an “eiectric plant” does not contain -the words “for a public use.” they are to be understood and to be read into it. An electric plant must of necessity be devoted to a public use before it is subject to public regulation.
    5. -:-: Private Person. A single person, having constructed an electric plant solely for private use, may, by holding himself out as willing and ready to serve the public, by such profession and by the furnishing of a general public service, become a public utility.
    6. -: -: -: Subject to Full Regulation. If a private person is a public utility, he is such within the whole purview and for all inquisitorial and regulatory purposes of the Public Service Commission Act.
    7. -: --: This Case. A brewery corporation, whose stock was owned by M. O. Danciger and his brothers, was engaged in the brewing of beer, in a town of 1000 or 1500 inhabitants. It installed a plant for producing electric light and operating by electricity the machinery used in the brewery. Discovering that it was able to produce more electricity than it needed for those purposes, it began to make special private contracts to furnish current for light and power to certain private persons within three blocks of its plant, about thirty in all, and also furnished thirty street lights, for five or six of which it received $19.50 per month, the others being furnished gratuitously. It was not incorporated for this purpose, and the contracts were made with M. O. Danciger & Company, which was simply a trade name of M. O. Danciger. He had no distributing system, and the persons who bought electricity from him constructed their own wires to the electric plant and installed their own meters. He had no franchise or license from the town, neither in his own name or his trade name or any other, nor did he have any permission to erect poles or wires upon the streets or alleys, nor did he have or assert the power of eminent domain, nor did he at any time expressly profess a readiness or willingness to furnish electricity to all persons within the town, or to all those within the restricted three-block area. Held, that he was not a public utility, and the Public Service Commission has no power to compel him to continue the service or to regulate it. It cannot be said that a private company which undertakes to sell no more than its surplus electricity to a few near-by citizens, and not to the public generally, is engaged in a public business.
    7. -: Police Power: State Regulation: Private property. The police power is bottomed and wholly dependent upon the devotion of private property to a public use. The Constitution forbids the regulation of and the exercise of inquisitorial authority over property devoted to private use, and before the State can exercise such regulation the property must be devoted to a public use.
    Appeal from Jackson Circuit Court. — Hon. G. A. B.urney, ■ Judge.
    Appikmbd.

      Alex Zl Patterson, General Counsel, James D. Bindsay, Assistant Counsel, and B. Denny Davis for appellant, Public Service Commission.
    (1) The relator is engaged in a business of the kind defined in the Public Service Act, and is subject to the jurisdiction of the Commission by the plain terms of the act. Subsections 1 and 5 of Section 16 and Subsections 12 and 13 of Section 2, Publ. Serv. Act of 1913. (2) The nature and extent of the business done by relator constitutes it a public service company. Neither a corporate charter as a public service company, nor a franchise from a city, nor the lack of them, are determinative. The nature of the business and of the service rendered is the decisive test and must control. Terminal Taxicab Company ,v. Kutz, 241 U. S. 252; German Alliance Insurance Company v. Lewis, 233 U. S. 389; Ratcliff v. Wichita Union Stock Yards Company, 6 L. R. A. (N. S.) 834 and note; YanDyke v. Geary, 244 U. S. 39; Del Mar Water, Light and Power Company v. Eshleman, 167 Cal. 681, 140 Pac. 948; State ex rel. Subway Company v. St. Louis, 145 Mo. 575; Budd v. New York, 143 U. S. 517; Brass v. North Dakota, 153 U. S. 391; 1 Wyman, Public Service Corporations, sec. 50. (3) It is not necessary that a company should serve all of the public to give it the character of a public utility. No utility serves all of the public. The ^public does not mean everybody all of the time. But what is meant, is a service which affects so considerable a portion of the public, that it is public in the same sense in which any other may be called so. Terminal Taxicab Company v. Kutz, 241 U. S. 255; Peck v. Tribune Company, 214 U. S. 190; Cawker v. Meyer, 147 Wis. 320. (4) The business of furnishing electric current for light and power within a city is one of that large class of concerns which has always been held to be a business clothed with a public interest, and to be subject to regulation by the public. Exhaustive note in Ratcliff v. Wichita Union Stock Yards Company, 6 L. R. A. (N. S.) p. 834. ‘ (5) So long as relator undertakes to do a business, and to render a service public in its nature, relator cannot be permitted to discriminate or arbitrarily refuse service. Section 68, subsection 3, Pub. Service Act. (6) The provisions of the act are to be liberally construed with a view to the public welfare, efficient facilities and substantial justice between patrons and public utilities. Section 127, Public Service Act.

      I. J. Ringolsky, M. L. Friedman and Ringolsky & Friedman for respondent.
    (1) Under the facts and the law respondent is not a public utility. State ex rel. Public Commission of Washington v. Spokane & I. E. R. Co., 154 Pac. 1111; Utilities Commission ex rel. Wabash v. 111. Central, 113 N. E. 162; Cawker v. Meyer & R. R. Commissioners, 147 Wis. 320; Delmar Water, Light & Power Co. v. Eshleman, 140 Pac. 591. (2) The Public Service Act does not give the Commission jurisdiction over plants generating electricity for their own consumption and selling surplus. The act confers jurisdiction only over electrical companies having the right by charter, franchise, special or general laws, to use the streets and highways for the sale of electricity. Laws of State of Washington, 1911, pp. 534, 544; Public Service Act, Sec. 2, Art. 1; Sec. 64, Art. 4. (3) Assuming arguendo that the respondent is a public utility the Public Service Commission had no jurisdiction in the instant cases. Lusk v. Atkinson, 268 Mo. 116; Atchison, Topeka & S. P. Rv. Co. v. Public Service Com., 192 S. W. 462; Sec. 83, Laws 1913, 619; State ex rel. Payne v. Kinloch Tel. Co., 93 Mo. App. 349; State ex rel. v. Jones, 141 Mo. App. 304; State ex rel. v. Water, Light Co., 249 Mo. 649; Public Ser. Electrical Co. v. P>oard, 96 Atl. (4) The Commission has no authority, right or prerogative to designate or select certain specific persons out of many persons as the persons to whom service must be given.
   FARIS, J.

This is an appeal by the Public Service Commission and others from a judgment of the circuit court of Jackson County, annulling an order of the Public Service Commission (hereinafter called for brevity simply “Commission”) in a case wherein one W. H. Roach, was complainant. After the conventional motions, the Commission and the complainant appealed.

This case is one of three of similar character and bottomed upon identically similiar facts. The relief severally sought was an order upon M. O. Danciger (trading as M. O. Danciger & Company) to compel him to restore electric service to the complainants, which service, it was alleged, had been by said Danciger. cut off without any legal excuse therefor. The complaints filed before the Commission by the three several complainants were similar in all substantial respects, and whoily similar except that the complaint 'filed in the instant case .averred as a motive for the cutting off of the service, that discontinuance was due to ill-feeling engendered by the attitude of complainant in a Local Option election.

It was shown by the testimony adduced upon the hearing before the Commission that the Royal Brewing Company, situate at Weston, Missouri, .is a corporation, the stock of which is largely, if not wholly, owned by respondent M. O. Danciger and his brothers. The Royal Brewing Company is engaged in the brewing of beer and in the manufacture of so-called soft drinks. The town of Weston contained, according to the last census, a population of 1019 persons, though the evidence adduced tends to show roughly that it now contains about 1500 population. Some six years before the hearing the Royal Brewing Company (hereinafter called for brevity the “Company”) installed in its brewing plant the necessary machinery for producing electric light solely for its own use in lighting its property. During the last three or four years preceding the hearing before the Commission, the Company has also been using the electric current so generated for the purpose of operating by electricity a large part of the machinery used in its brewing business. Shortly after the Company put in its private electric plant it discovered that it was able to produce more electricity than was necessary for its own use in lighting and running its plant. It thereupon began to make special private contracts to furnish, under the conditions and circumstances below named, electricity for lighting and power purposes to certain private citizens of the town of Weston, located within a radius of three blocks of the Company’s plant. Subsequently it began furnishing to the town of Weston lights for some of the streets and alleys thereof. At the time of the filing of this complaint between, twenty and thirty of the business houses, and some ten residences within the area mentioned, were being lighted or partially lighted by electricity from the Company’s plant. At this time the city was being furnished thirty or thirty-two lights, for which it paid for only five or six of these the sum of $19.50 per month. The remainder of the lights were furnished gratuitously. All of the electrical energy sold is delivered to consumers at the Company’s plant. For, says one of the complainants, “we Avere told if we Avould run the line we could have the service.” The Company has no distribution system for supplying any of these private persons; nor is it incorporated for this purpose, nor is this purpose mentioned among the things which as a corporation it may do; nor has it a franchise from the town of Weston as an electric lighting company, or any other permission to enter or cross the streets and alleys thereof. It does not itself place or construct any poles or wires upon the streets, alleys or public places of the city; nor does it own any poles or Avires. The consumer desiring the surplus light or power furnishes his wire and poles, and bears all cost of constructing the line for transmitting the electric current from the Company’s plant to the place of consumption, or he “taps in” on some other private owner’s wire. The actual work of construction and installation is usually done, if not always, by employees of the Company, in which case the Company is reimbursed by the private consumer. In some instances the contracts for this installation were made directly with the employees themselves, and the work was done after working hours. In some cases the amount of current consumed is measured by a meter, which meter belongs to the consumer; and in others — the greater number of cases — the amount-paid is governed by a fiat rate.

The sale of the surplus current, although it is generated by the Company, and with the Company’s machinery, is conducted with consumers by respondent under the .said trade name of “M.,0. Danciger & Company.” The reason for this arrangement was upon the hearing, without any contradiction thereof, thus explained by respondent: “The brewery didn’t have a right to go into the lighting business, and I took it up with my brothers, and they said if you have got any friends you want to serve, you had better [not] serve them from the brewery company as a corporation, and that is how I happened to start this M. O. Danciger & Company. I got a little set of books at- that time. I didn’t really know what they were paying for their lights. Some of them were on flat rates, and every time a man would go around to collect, they would say their next door neighbor’s bill wasn’t as big as theirs and you must not be charging him as much per kilowatt as you are me. Then I had this form printed they offered in evidence, and gave them around a time or two as receipts. • That is how that form happended to be printed, to keep down arguments.”

The complainant, Roach, is the owner of a weekly newspaper published in Weston, called “The Weston Herald.” About a year, or 'a year and a half, before the matters here in controversy, arose, complainant bought this paper and printing plant from one Taylor. Power and lights were then being furnished by the Company through respondent upon the arrangement above set out to Taylor, and after complainant’s purchase of the newspaper the service was continued until June 7, 1916, 'when the wires were suddenly cut by Danciger, without prior- notice, and the service discontinued. Upon demand made for reinstatement of the service, and upon a refusal thereof, this proceeding was brought.

The printed form of receipt mentioned by respondent as having been given by him “a time or two as receipts” to his customers, contained on the reverse thereof a statement of the rates to be charged customers for current furnished for lights. No - reference was made in definite kilowatts to rates for motor service, but the printed form of receipt contained on the back thereof the statement: “Special rates for motors upon applicationWe mention this specifically, because much importance is attached to it by appellants. So far as the record shows these rates were not contained on any receipt after October 15, 1915, and were given out only once or twice to customers only prior to that time. No receipt issued after October 15, 1915, contained mention anywhere of the rates charged or of any special rate for motors.

The area of three blocks from the Company’s plant is all of the town of Weston which was given any service, and not nearly all of the residences and businesses in this area have this service. The district within three blocks of the plant comprises only about one-fifth of the town of Weston since the Company’s plant is situate on the extreme edge of the town. The record discloses that a number of persons, both within the area of three blocks, and without the same, made requests for service, and were refused, because respondent was, he says, unable to furnish this service by reason of lack of surplus current.

There are no contracts in writing with any of the customers of respondent. The arrangement for furnishing the five or six lights to the city, for which the city pays, was made verbally, and is thus related by a witness who was a member of the Board of Aldermen when this arrangement was made: “I spoke to Mr. Danciger, about it, and he said he had no franchise or anything, and I asked him as a favor if he would not permit us to put a few lights down town. Our lights were bad. He said, well if you stretch your own wires and be responsible for the up-keep, that he was not to be responsible for any damage or anything, that he would furnish a few lights. . . . Said, of course sometimes they go out. So we put in at that time about three lights, and then after we got by the fire department, he put a light on the bridge. He wired the fire department gratis. . . . The final arrangement was just made between me and Mr. Danciger. Then I took it np with the Council and told him we were willing. ; I asked him if he would come down to the Council, and he did. . . . He said he could not guarantee us any service, any more than he would do the best he could. He could not guarantee us any service for any length of time or anything. He said, and I knew it to be a fact, that his generator was there for his own use for lighting.” Fairly construed the testimony of Danciger corroborates this witness, and no one contradicts him.

Upon the trial respondent, testifying for himself, was asked to state his reason for cutting off the service from the complainant. His answer was this: £ £ The first reason was, that I wasn’t holding myself out as a light company, that I was ruining my machinery, that I was running at a loss at the plant. I have electric-driven machinery that I wasn’t able to use, using steam machinery that cost twice or three times the amount of money to operate, and another reason was that these men who were using the current were the last men that got the service. That was another reason. The third reason was that I was furnishing these people current at a loss, doing it as a favor and they were abusing me personally, and trying to destroy the business I had, all I had in the world, and I didn’t feel any too friendly. Those are the different reasons for cutting off that current. ’ ’

The Commission after taking voluminous testimony in the case made a report in which it held that respondent was conducting a public utility; that he owed the duty of serving complainant, and that the discontinuance of the service was without reasonable excuse, and thereupon entered an order that the service be restored. From this order respondent herein took the case by the statutory writ of review, or certiorari, to the circuit court, of Jackson County, wherein upon a hearing de novo the order of the Commission was annulled. Thereupon the Commission and the complainant Roach. appealed.

Much of the record in the case is taken up. in an effort to prove and disprove the wholly irrelevant matter of motive. It was strenuously contended at the hearing, in the briefs, and upon argument, that the cutting off of service to this complainant was wholly due to ill-feeling arising from the arid attitude of the complainant and his newspaper in a Local Option election. It is too plain for argument that we are not to determine this matter on a consideration of the antecedent reasons which brought about this proceeding. Whether the action complained of was brought about by reasons which in morals are just or unjust, good or bad, is no concern of the courts and cannot in the remotest way affect the law of this case. This is so bécause if complainant is entitled to service, he is entitled to it as a matter of law, and if he is not under the law entitled to it, no motive, however reprehensible, for discontinuing the service will serve as a reason for any court to compel the restoration thereof. It is but remotely apposite on the point whether the Local Option question or a lack of facilities to furnish the service constituted the dominating motive. For if respondent is a “public utility,” neither excuse will serve; because the Commission has power to compel him to provide reasonable and adequate facilities. If he is not such utility, no excuse is necessary. It is therefore but to pad the case with immaterial irrelevancies to take up the time of counsel, and of this court, with such questions.

There'is but one question in the case. That is a question of law, and is, to-wit: Is M. O. Danciger, Public ■ trading as M. O. Danciger & Company, entrtiiity. gaged in doing such business as by law permits the regulation thereof by the^Public Service Commission Act?

In this connection, we may mention in passing, respondent contends that M. O. Danciger & Company cannot be compelled to furnish the service in question, because, since the electric current used is .obtained from the brewery company, which is a corporation, the result of such an order would be tantamount to, and result in forcing the company to do, an ultra vires act. Upon this contention, even if it were vital here, it is enough to say that in determining whether a corporation is or is not a public utility, theJ important thing is hot what its charter says it may do, but what it actually does. [Terminal Taxicab Co. v. Kutz, 241 U. S. 252.] In short, if the things done constitute the corporation a public service company, it ought not to be, and will not be, heard to urge its own wrongful aggressions in order to escape regulation. Moreover, the corporation is not a party to this proceeding. Complainant saw fit' to concede, in electing to Sue M. O. Daneiger & Company, that the latter and not the brewery company constitutes the alleged public service entity, and that the explanation of Daneiger, as to the relations between the brewery Company and M. O. Daneiger & Company is true.

It is contended by appellants -that the whole question is settled by sub-divisions 12 and- 13 of Section 2 of the Public Service Commission Act, which define an “electric plant” and an “electric corporation,” over which plants and aggregations, as defined, other appropriate provisions of this act (Subdivision 25, Sec. 2, p. 560, Laws 1913)- confer plenary powers of regulation. The above clauses read thus:

“The term ‘electric plant,’ when used in this act, includes all real estate, fixtures and personal property operated, controlled, owned, used or to be used for or in connection with or to facilitate the generation, transmission, distribution, sale or furnishing of electricity for light, heat or power; and any conduits, ducts or other devices, materials, apparatus or property for containing, holding or carrying conductors used or to be used for the transmission of electricity for light, heat or power.

“The term ‘electrical corporation,’ when used in this act, includes every corporation, company, association, joint stock company or association, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever (other than a railroad or street railroad corporation generating electricity solely for railroad or street railroad purposes or for the use of its tenants and not for sale to others) owning, operating, controlling or managing any electric plant except where electricity is generated or distributed by the producer solely on or through private property for railroad or street railroad purposes or for its own use or the use of its tenants and not for sale to others.”

While the definitions quoted, supra, express therein no word of public use, or necessity that the sale of the electricity be to the public, it is apparent that the words “for public use” are to be understood and to be read therein. [State ex rel. v. Spokane Co., 154 Pac. 1110.] Por the operation of the electric plant must of necessity be.for a public use, and therefore be coupled with a public interest; otherwise the Commission can have no authority whatever over it. The electric plant must, in short, be devoted to a public use before it is subject to public regulation. [Munn v. Illinois, 94 U. S. 113.] Since, the sole right of regulation depends upon the public interest, the subdivisions quoted above, and which define an electric plant and an electric corporation,, mean the same, whether the idea of a public use is expressly written therein or not; it is, nevertheless, of necessity connoted and to be understood therein. We are not to be understood as saying that an electric plant constructed solely for private use could not, by professing public service, become by such profession and by the furnishing of general public service, a public utility.

There is in this case no explicit professing of public service, or undertaking to furnish lights or power to the whole public, or even to all persons in that restricted portion thereof who reside within three, blocks of the Company’s plant. Por there is in the case neither existence nor assertion of the right of eminent domain. Nor does there exist any franchise or license, nor has there been obtained from the town of Weston any right or privilege to cross the streets, alleys, or other public places therein, nor are there any charter powers authorizing the company, or the respondent, to engage in the public service. The fact of professing public service, that is, of holding hiinseif or the Company out as ready and willing to serve the public, must therefore, in order to hold respondent, be deduced implicitly, if it is to be found in this record at all.

It is certainly fundamental that the business done by respondent either constitutes him a “public utility,” or it does not. If he is a public utility, he is such within the whole purview and for all inquisitorial and regulatory purposes of the Public Service Commission Act. If, therefore, what respondent did constitutes him a public utility, other apposite sections of the law confer upon the Commission the power of compelling him to furnish and provide such “instrumentalities and facilities as shall be safe and adequate to furnish service.” [Sec. 68, p. 602, Laws 1913.] Still other provisions would seem to confer upon the Commission the power to compel service as to all residences, businesses and purposes, within a radius of three blocks from the Company’s plant. Certainly so much could be compelled by orders of the Commission. Absent the matter of franchise, it is possible, we suggest arguendo, that plenary authority exists, if respondent be a public utility, to compel the furnishing of the service to the entire town of Weston. The plant is now running at its full capacity, and if any considerable extension of the service thereof were ordered, extensive and expensive additions of machinery to the plan1 must likewise be ordered. In order to afford such service to the whole town, or even to all persons within the three-block area, the respondent would he compelled to obtain from the town of Weston a franchise permitting him to erect poles and wires along and across the public streets and alleys thereof. In an analogous case we have said that the Commission cannot compel a public utility to do a thing wherein the- obtaining of a: franchise is a condition precedent. [State ex rel. v. Public Service Com., 270 Mo. 1. c. 442.]

In the light of these-considerations does the business of respondent constitute him a public utility, within the meaning of the Publie Service Commission Act? We are of opinion that it does not. For as forecast above, State regulation of private property can be had only pursuant to the police- power, which power is bottomed on and wholly dependent upon the devotion of private property to a public use. If. the requirement that the private property shall be devoted to a public use, before it can. be regulated, and before inquisitorial authority be exercised, over it, is not to be read into the applicatory law, then that law is obviously unconstitutional, because it takes private property for public use without compensation.

The precise question before us is one of first impression in this jurisdiction. It has been up before the courts but few times in any jurisdiction. It has been up recently before the Public Service Commissions of the several States a number -of times. The holding of the courts thereon, while not absolutely unanimous, has been usually against the contentions of the appellants here (Cawker v. Meyer, 147 Wis. 320; Del Mar Light & Power Co. v. Eshleman, 167 Cal. 666; State ex rel. v. Spokane Railroad Co., 154 Pac. 1110; Brown v. Gerald, 100 Me. 351; Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429; Avery v. Vermont Electric Co., 75 Vt. 235; Fallsburg, Co. v. Alexander, 101 Va. 98; 1 Wyman on Public Service Corps, sec. 243), while a very few of the courts, and the public service commissions rather unanimously, have held to the contrary (Wingrove v. Public Service Commission, 74 W. Va. 190, and cases cited in 1918 A. L. R. A.). After a careful examination of the cases Mr. Wyman, in his excellent work on Public Service Corporations, at the section cited supra, says:

“That the business of supplying gas is public in character is now universally recognized, provided that the company supplying is committed to supplying g'as to the community in general. But the case can be imagined of an institution with a generating plant for its own supply, which might even supply one neighbor without being obliged to sell to all others. In the same way the business of supplying electrical energy has generally been recognized as public in character. There are, however, several cases where the company supplying electricity has not professed to sell to the public indiscriminately at regular rates, but has from the beginning adopted the policy of entering into special contracts upon its own terms; such companies are plainly engaged in private business.”

In the late case of Cawker v. Meyer, supra, the Supreme Court of Wisconsin said:

“The State claims that by furnishing heat, light, and power to the tenants of their own building the plaintiffs became a public utility; that the furnishing of such commodities to any one else than to one’s self is furnishing it to the public within the meaning of the statute. It'is obvious that such a construction is too narrow, for it would constitute the owner of every building furnishing heat or light to tenants, as well as every householder who rents a heated or lighted room, a public utility. The Legislature never contemplated such a -construction to he given the words ‘public utility.’ They must receive a construction that will effectuate the evident intent of the Legislature and not one that will lead to a manifest absurdity. It was not the furnishing of heat, light or power to tenants or, incidentally, to a few neighbors that the Legislature sought to regulate, hut the furnishing of those commodities to the public, that is, to whoever might require the same. [Wis. River Imp. Co. v. Pier, 137 Wis. 325, 118 N. W. 857.]”

In the case of Del Mar Water Light & Power Co. v. Eshleman, supra, it was held that even a water company which was organized to furnish water to certain owners of town lots, which had been theretofore sold to such owners by a land company to which the Del Mar Company was an ancillary corporation, had the right to restrict its service to such lot owners, and to a few others of the public whose former water supply had been taken over by the Del Mar Company. Apposite to the facts and questions here it was said in the Del Mar case that:

“The serving of water to the 17 inhabitants of the ‘ old town’ of Del Mar was not sufficient to make the water company a public utility, offering its water to the general public. When the land company bought all the unsold lots of the town site its property surrounded the places of residence of ihese inhabitants .of ‘old town.’ It bought and abandoned the old wells from which these people derived their supply, and its arrangement with the water company to serve water to them no more constituted the latter a public service corporation than did that contract by which the Santa Fe Land Improvement Company was to receive a certain quantity of the water which might be developed. The sales to contractors who were engaged in road building were no more significant than would be similar accommodations by a farmer from his wells, and the same thing may be said of the trifling amounts of water sometimes sold to neighbors and by them hauled away in barrels. That the water company had refused to furnish persons who had not purchased land from the South Coast Land Company was shown without contradiction ; and, while the reasons assigned were sometimes the scarcity of water, the fact of refusal remains. The fact is highly significant. It is also significant that under the arrangement which the water company had with the land company the latter was furnished with a large amount of water through unmetered pipes for the use of its hotel and other buildings. All of these facts and circumstances indicate that the Del Mar Water, Light & Power Company was merely the incorporated water department of the South Coast Land Company.”

The case of State ex rel. v. Spokane Railroad Co., supra, which was decided by the Supreme Court of Washington, is practically. on all-fours with the case at bar upon the ultimate facts. Not only is this true, but the definitions in our own Public Service Commission Act (and. largely the act itself) were obviously taken, with mere slight verbal changes, from the prior Washington enactment on the same subject. [Laws of Wash. 1911, pp. 538-612.] Construing this act in 1916, in a case involving, as here, the question whether the acts done constituted the actor therein a public utility within the purview of the Public Service Commission Law of that State, the Washington Supreme Court, in an able opinion by Mount, J., said:

“We understand the law in this State to be that companies furnishing electrical energy may or may not be public service corporations, depending upon the objects for which they were organized and the business in which they are engaged, the logic of the cases being that we will judicially inquire whether the sale of power is a selling to the public generally or is only an incident to the business in which the company is engaged . . . The character of such companies and their relation to the public has been frequently considered by this court. We find no departure from our first holding that a sale of electrical energy or power for private enterprises is not an engaging in a public business and gives such companies no right to assert the sovereignty of the State. [Citing authorities.] ...

“It is argued that the present act (1911) furnishes ample authority for holding that public necessity, as evidenced by the legislative declaration, now requires that such companies be held subject to regulation in their private affairs, and that the right of the public to the enjoyment and use of such property is regulated, guaranteed, and safeguarded by appropriate legislation. But we think the act does not go so far . . . Granting for the sake of argument the right of the Legislature to exercise the police power to the extent of regulating and controlling the price to be charged for power sold to private individuals or to others, such right should not be declared by the courts in the absence of express legislation. The regulation and control of business of a private nature is sustained by reference to the police power, and even then it is sustained only when courts have been able to say that a business is in character and extent of operation such that it touches the whole people and affects their general welfare. It is upon this principle that Noble State Bank v. Haskell, 219 U. S. 104, 55 L. Ed. 112, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487, and German Alliance Insurance Co. v. Kansas, 233 U. S. 389, 58 L. Ed. 1011, L. R. A. 19150, 1189, rest. Until the Legislature brings a business within the police power by clear intent, courts will not do so. . . .

“Neither has the business of selling surplus power been so notoriously beset by abuses that we can judicially notice it as having an outlaw character. The right to regulate under the present law must be measured by the public interest. It will hardly be contended that appellant’s contracts with those to whom it sells its surplus are of any interest or concern to anyone other than the immediate parties. It is not alleged that it is neglecting its public duty because of them. No one has a right to compel appellant to sell its surplus. The act of sale is purely voluntary. Like the merchant it can sell at one price to one man and at another price to another. ... If either is not content with the offering of the other he does not have to contract. He can go his way. But it is not so with appellant, when exercising its public function, that is, furnishing something — a necessity — that all are entitled to receive upon equal terms, under equal' circumstances and without exclusive conditions. [Beale & Wyman, Rate Regulation, sec. 1.]”

The case of Van Dyke v. Geary, 244 U. S. 39, is strongly relied on by appellants as upholding their contentions. We do not regard it as doing so, and we have no quarrel with the law announced, upon the facts existing in that case. The facts, which in our view differentiate that case from this one, are at page 48 thus stated by the court in the opinion: “Counsel contend that the use is not public, because water is furnished only to particular individuals in fulfillment of private contracts made with the purchasers of town-site lots. But there is nothing in the record to indicate that such is the fact.” (Italics our).

The rule by which profession of public employment is to be tested, where, as here, such profession arises, if at all, implicitly, is thus laid down'by Mr. Wyman:

“The fundamental characteristic of a public calling is indiscriminate dealing with the general public. As Baron Aldeeson said in the leading case: ‘Everybody who undertakes to carry for anyone who asks him is a common carrier. The criterion is whether he carries for particular persons only, or whéther he carries for everyone. If a man holds himself out to do it for everyone who asks him, he is a common carrier; but if he does not do it for everyone, but carries for you and me only, that is a matter of special contract.’ This regular course of public service without respect of persons makes out a plain ease of public profession by. reason of the inevitable inference which the general public will put upon it. ‘One transporting goods from place to place for hire, for such as see fit to employ him, whether usually or occasionally, whether as a principal or an incidental occupation, is a common carrier.’ ” [1 Wyman On Pub. Service Corps., 227.]

Testing the facts of the instant case by this rule, and by the rule announced by the majority of the courts,, as well as by the reason of the thing, and the far-reaching results of any other view, rather than by the view taken by a majority of the Public Service Commissions of the several states, we are constrained to hold that as to complainant, the respondent owed him ho continuing public duty of service, and that the view taken nisi is correct.

It follows that the case ought to be affirmed. Let this be done.

All concur.