author: GOODE, J.

text:
    AMERICAN FIRE ALARM COMPANY, Appellant, v. BOARD OF POLICE COMMISSIONERS et al.
    Division One,
    December 30, 1920.
    1. METROPOLITAN POLICE: State Agency. The municipal police officers, including tbe members of tbe police boards, of St. Louis and Kansas City, constitute a part of the agencies adopted by the State to preserve the peace and protect the legal rights of persons. The expense of the police system in such cities, including the expense of the boards of police, is borne entirely by the cities and paid out of their respective treasuries, in a manner prescribed by statute; but though the city carries the expense of the board of police and the police system generally, it does this as the agent of the State, and in pursuance to its laws, which it has no discretion about obeying.
    2. -: Alarm Boxes: Power to Buy. The power of the Police Commissions of Kansas City is not restricted to “the renting of apparatus for police alarms,” but they have power to purchase and contract for the purchase of such alarm boxes.

      3. -: Contract to Purchase Boxes: Failure to Pay: Damages: Mandamus. In a suit on a contract with the Police Commissioners of Kansas City for the purchase of police alarm boxes, in which plaintiff demands payment for boxes delivered and accepted, and for damages for boxes completed under said contract and refused, wherein plaintiff has the right to affirm and the Commissioners to deny that the boxes complied with tl^ specifications of the contract, that they were delivered or tendered, or have not been paid for, or the obligation to take them has not been released, mandamus is not the remedy; but the appropriate proceeding is an action at law, wherein either party may demand a jury and the claim be established by a verdict and a judgment, which the city must pay if it is included in the estimate of the expenses made by the Commissioners; and if they will not so include it, then mandamus would be appropriate to compel them to do so.
    4. -: -:• Civil liability. The Board of Police and the police system of Kansas City generally do not compose a department of the. municipal government, and hence the rule that no action will lie against a department of a municipality does not control the question of the liability of its Board of Police or its Police Commissions to be sued on a contract.
    5. -: -: -: Expense Not Settled by Auditor. Although the police system of Kansas City is a state institution, yet as the expense for its maintenance is paid out of the city treasury, the items of cost are not embraced within the statute which requires the State Auditor to audit, adjust and settle all claims against the State and payable out of the State Treasury.
    6. -: -: -: Demand for Money: Party Defendant. A demand for money arising under a contract entered into between plaintiff and the Police Commissioners of Kansas City cannot be presented for payment either to the officials of the city or to those of the State, but must be presented to the Police Commissioners, and if they .refuse payment, plaintiff’s recourse by action, if any he has, must be against them, either sued in the name of a distinct entity, as was mistakenly done in this case, or in their individual names, but in their official capacity. The precise question, in such an action, is the proper defendant or defendants, rather than whether the Board of Police is a tfwasi-corporation.
    7. -: Quasi-Public Corporation: Action on Contract. The Board of Police of Kansas City is not a q’Mcm-public corporation in any such sense as will authorize a suit against it on a contract. Even if- it be admitted that the Police Commissioners compose a body corporate, in the absence of a statute giving to the body a distinctive name whereby it may sue and be sued, an action will not lie against it by any name a suing plaintiff may choose to adopt, nor by any other name or style than the names of its members. But it does not follow that, if the board is not a corporate body, an action based on a valid contract made by it will not lie against its members in their own names, but not in their personal capacity.
    8. -: Police Commissions: Liable to Action on Contract. When public officers are entrusted with definite powers and duties, and in the course of their duties and acting within their powers, they give rise to legal rights in other persons, especially when such rights grow out of a contract, and no way exists to enforce them except by an action against the officers as such, an action will lie against them. This is the doctrine of the common law, and, statutes on the subject are mainly declaratory of the common law.
    9. QUASI-PUBLIC CORPORATION: Definition. The words “quasi-corporation” is a phrase applied to a body which exercises certain functions of a corporate character, without having been created a corporation by any statute, general or special; but they cannot be defined with precision. In. some bodies which have been accorded -corporate character in judicial rulings, without having been incorporated by an express legislative act, the dominant fact was a defined territory with power to act and contract through its governing officers, such as counties or school districts; in other instances, groups of persons entrusted with public functions, like overseers of highways and boards of education, have been regarded as g-aowi-bodies politic, but these are such only because they are so recognized by the statutes or immemorial usage. The most influential circumstance whereby to determine whether or not public officials are g-wasi-corporations is that the law, either by immemorial usage or by the implications to be drawn from relevant enactments, has recognized -them as such, without expressly declaring them to be.
    10. -: -: Power, to Contract. It is an extravagant notion that every officer or body of officers vested with power to make contracts to a limited extent which are not binding on them personally is, by that fact alone, made into a corporation.
    11. -: Police Commissioners. The Police Commissioners of Kansas City are not a body politic by immemorial usage, and they have not been erected into a corporation by legislative' acts. While they have power to make contracts within a small compass, they are not authorized to use a seal; they are not spoken of in the statutes as a corporation; the title of the property which may be acquired by their action is not required to be vested in them as a body corporate; they have been given no distinctive name, certainly not the name of “Board of Police Commissioners,” and hence by that name they cannot be sued, since the statutes do not say that they shall have power, as such, to sue or be sued.

      12. -■—: Different Boards and Commissions Collated: Powers of Each. The manner in which the many boards and commissions for public purpose have been established and the different powers conferred suggest that the Legislature has pursued a policy of selection in the matter of incorporating them. Those created corporations with •enumerated faculties are enumerated in the opinion; those not expressly declared to be bodies corporate, but with power conferred to sue and be sued, are likewise enumerated; and others which have neither been created corporations nor declared capable of suing or beipg sued, are also enumerated.
    13. METROPOLITAN POLICE: Sued As Quasi-Corporation: Style of Suit. The Board of Police of Kansas City not having been endowed with a name or other corporate attributes, actions against the board should be instituted in the name of the members and in their official character. A petition entitled, “American Fire Alarm Company, Plaintiff, v. Board of Police Commissioners Of Kansas City, Missouri, now Composed of James Cowgill, President, John R. Ranson and John Halpin, Commissioners, Defendant,” is subject to demurrer, since the Board of Police Commissioners is nor a body politic, and an action cannot be maintained against it as such, and the Police Commissioners are not mentioned either in the title or the body of the petition by way of making them parties.
    14. -: -: -: Parties: Service. The mere mentioning of Police Commissioners in the title and in the body of the petition, but not by way of making them parties, cannot be accepted as sufficient to make them parties and to authorize them to bo served with process, as they 'must be if parties. Where they are sued as an entity and as a single defendant, service of process upon them personally is not necessary, but only on the chief officer.
    15. -: Action on Contract: Ultimate Liability. An action for the balance due for police alarm boxes sold and delivered under a contract between plaintiff and the Police Commissioners of Kansas City, an action of indebitatus assumpsit for the value of boxes delivered and accepted under said contract, and an action for damages for breach of said contract by refusing to accept boxes completed _ and ready to deliver at the time of the breach, may b© maintained against the Police Commissioners in their own names and in their official character, and the ultimate liability, if any, is on the city, and not on the Stato.
    Appeal from Jackson Circuit Court.—Hon. Clarence A. Burney, Judge.
    Affirmed.

      Darius A. Brown and J. M. Johnson for appellant.
    (1) Defendant, Board of Police Commissioners, is a quasi-municipal corporation possessing all elements of a legal entity. Art. XVII, Chap. 84, R. S. 1909; State ex rel. v. dost, 265 Mo. 51; State ex .rel. .v. Jost, 269 Mo. 248; Clarissey v. Eire Department, 1 Sweeney (N. Y.) 224; Police Commrs. v. City of Louisville, 3 Bush. (Ky.) 597; McQuillin on Municipal Corp., sec. Ill; Vincennes University v. Indiana, 14 How. (U. S.) 268; 27 Cve. 128; Scates v. King, 110 111. 456; Richardson Co. School List. v. Ins. Co., 103 U: S. 707. (2) In the enactments comprised in Art. XVII, Chap. 84, R. S. 1909, the Legislature, as it had the power to do, recalled from cities of the class to which Kansas City belongs all power of supervision and control over the police department and conferred those powers and functions upon a separate, independent legal entity designated as the Board of Police Commissioners. Authorities above. (3) The provision for perpetual succession coupled with the investiture in the Governor of the power of appointment, the provision giving funds to the boord, and the disposition thereof, and empowering the board to acquire property free from the domination, control or regulation of the city, completed the elements requisite to the creation of an independent corporate being endowed with the exercise of business functions recalled by the State from the city. Authorities above; also Harris v. Mortgage Co., 244 Mo. 664. (4) With the power to regulate and control, to arm and equip, and to make contracts, the board was invested with the implied authority to sue and be sued. A quasi-corporation has such capacity whether or not the same be expressly conferred. Authorities above. Also Commonweath v. Green, 4 Whart. (Pa.) 531, 598; Elliott on Municipal Corp. sec. 3, p. 7; 35 L. R. A. (N. S.) 243; Trevett v. Prison Assn., 50 L. R. A. 564; Gross v. Ken. Board of Mgrs., 105 Ky. 840; Hopkins v. Agricultural College, 221 U. S. 636; People v. Batcheler, 53 N. Y. 128; Wins-low v. Perquimans Co., 64 N. C. 218; Parsons' v. Levy Dist., 178 S W. (Mo.) 280; Levy Court v. Coroner, 2 Wall. (U. S.) 501. (5) It was not ultra vires the hoard to purchase the boxes and to enter into a contract for the purchase of the same. While it may be conceded the board could not ratify an act which was ultra vires, the powers being conferred upon the board by statute it could ratify the unauthorized act of a subordinate which if done by the board itself would be intra vires. Central Transportation Co. v. Pullman Pal. Car Co., 139 U. S. 24; McQuillin on Municipal Corp., sec. 1172; Edwards v. Kirkwood, 147 Mo. App. 599. (6) Mandamus is not a remedy open to plaintiff since a plain and adequate remedy exists at law. Flannigan v. Kansas City, 69 Mo. 462; Sanford v. Kansas City, 69 Mo. 466; Riley v. Kansas City, 31 Mo. App. 446, 14 L. R. A. 773; Smith v. Berryman, 173 Mo. App. 148; State ex rel. ITeller v. Thornfield, 174 Mo. App. 469; 26 Cyc. 306, 311; Mansfield v. Fuller, 50 Mo. 338; State v. Macon Co. Court, 68 Mo. 29; Payne v. School Dist., 87 Mo. App. 418; Claude v. Pierce City, 86 Mo. 37. (7) Since the board has perpetual succession, the contract was one it had authority to make regardless of the fact that the contract provided for performance extending beyond the term of office of the incumbent members of the board. Pattison v. Uba County, 13 Cal. 175; Hallenbeck v. Hahn, 2 Neb. 399; Manley v. Scott, 108 Minn. 142; Chápman v. York Co., 79 Me. 267; Pegram v. Cleveland Co., 65 N. C. 114; Monroe Co. v. Strong, 78 Miss. 565; Platter v. Elkhart Co.; 103 Ind. 360; Grannis v. Blue Earth Co., 81 Minn. 55; Scioto v. Jerky, Wright, Ohio, 493; Ruhland Co. v. Miller, 16 S. C. 236; McCormack v. Boston, 120 Mass. 499; Detroit v. Railway Co., 184 U. S. 368.
   GOODE, J.

A demurrer was sustained to the petition in' this case, and the plaintiff having refused to amend 'and electing to stand on its petition, final judgment was given against it and from that judgment this appeal was taken.

The question for decision is whether the action can be maintained against the Board of Police Commissioners of Kansas City as a body politic, the title of the cause being, “American Fire Alarm Company, a corporation, v. Board of Police Commissioners of Kansas City, Misouri, now Composed of James Cowgill, President, John R. Ranson and John Halpin, Commissioners, Defendant.” The only defendant named in the title was the Board df Police Commissioners of Kansas City, Missouri, and various allegations of the petition show the intention was to sue that body alone, and to sue it as a corporation.

The first allegation of the first count alleges “the defendant, Board of Police Commissioners of Kansas City, Missouri, is and was at all times mentioned herein, a qiiasi-public corporation created, organized and existing under and by virtue of the' statutes of Missouri, said board being composed of three members, two of them appointed by the Governor and confirmed by the State Senate, the third member being the mayor of Kansas City, who, by virtue of his office, is ex officio president of said board. ’ ’ The petition then says James Cowgill was the acting mayor of Kansas City at the time the action was begun, and ex officio president of the defendant, the Board of Police Commissioners of Kansas City; and that John R. Ranson and John Halpin were at said time the duly appointed, qualified and acting members. The petition says Henry L. Jost was'the mayor of Kansas City and, as such, ex officio president of defendant board on said 17th day of May and for some time before and after, and Fred A. Lamb, Jr., and James S. Lapsley were at those times the duly appointed, qualified and acting members of the board.

It will not be necessary to set out the petition in full, but only the substance of it. It contains averments regarding the power, on May 17, 1915, of the defendant Board of Police Commissioners of Kansas City, Missouri, under enumerated sections of the Revised Statutes of 1909, to employ, equip and arm a permanent police force for the city; to rent apparatus for police alarms and fire alarms, purchase new or additional equipment or other apparatus as it might deem necessary for executing its duties; and furnish all necessary material for a complete organization and equipment of the police force and police department of the city. It is alleged that on said May 17th, M. E. DeShaffon, acting as the authorized agent of the board, entered into a contract with the plaintiff on behalf of the board for the manufacture by plaintiff and delivery to the defendant at Kansas City of threé hundred •and fifty police signal boxes for the price of $80 per box. Other allegations state facts to show the authority of DeShaffon to make the contract for the board, and the terms of the contract. Then follow averments of the manufacture and delivery by plaintiff to defendant, pursuant to the contract, of fifty-four of said police alarm boxes, which were accepted by defendant and put into service in the police signal system of the city; that after-wards bills were presented by the plaintiff for said fifty-four boxes, and defendant issued its warrant to pay for forty of them, but refused to pay for the remaining fourteen boxes. The first count of the petition, which contains three counts, asks judgment for $1120, the unpaid contract price of said fourteen boxes.

The second count, after stating the gwasi-corporate capacity of the board, and who were its members at the date of the filing of the petition, and who on the 17th day of May, 1915, alleges plaintiff sold and delivered to defendant fourteen police signal boxes, of the reasonable value of $1120, which were accepted by defendant and put into use; and that defendant has refused to pay for them and is indebted to the plaintiff in said amount, for which judgment is asked. That is a count in the nature of one in indebitatus assumpsit.

The third count, after alleging the facts regarding the membership of the board on the two dates aforesaid, and the terms of the contract as recited in the first count, says plaintiff, relying on the contract and the good faith of defendant to carry it ont, manufactured and delivered to defendant fifty-four boxes, and completed, ready for delivery, with the exception of the wheel numbers, the remaining two hundred and ninety-six boxes. The wheel numbers, according to the petition, were to be* furnished by the board, and it is alleged that, although often requested to furnish them, defendant refused to do so; that.plaintiff -was at all times ready to complete said boxes by putting the wheel numbers on them, and deliver them to defendant according to the contract, and that plaintiff tendered delivery, but defendant renounced and repudiated the contract and refused to carry out its obligations, to the damage of plaintiff in the sum of $24,800, for which judgment is asked. That count seeks recovery for all the boxes, whether delivered or undelivered.

The reason assigned for demurring is that the case purports to [be brought against the Board of Police Commissioners as a legal entity, whereas said board is not a legal entity authorized -by law to sue and be sued; and further that each count of the. petition fails to state facts sufficient to constitute a cause of action.

I. The laws at present in force affecting the Kansas City “Board of Police” as the body is styled in the statutes, are contained in the article comprising the laws applicable to cities of 150,000 and less than 300,000 inhabitants, but the board was established in 1874 by a special act. [Laws 1874, p. 327; 3 R. S. 1909, Chap. 84, Art. XVII, secs. 9765 et seq.] The public policy of creating in large cities a system of metropolitan police controlled by a board of police, the members of which were appointed in mneh the same way, and the expense of the system similarly defrayed, was commenced for St. Louis in 1861. [Laws 1860-61, p. 146; Laws 1899, p. 51; State ex rel. Hawes v. Mason, 153 Mo. 23; 3 R. S. 1909, secs. 9803 et seq.; State ex rel. v. Stobie, 194 Mo. 14.] And there is in effect a general statute for the establishment within cities of the first class of a similar body called “Board of Police Commissioners, City of--.” [2 R. S. 1909, sec. 8770.] Those commissioner's are to be appointed by the Governor and the expenses of the department paid in the same way as the expense of the police department in Kansas City. [2 R. S. 1909, secs. 8774 et seq.] There are similar statutes for cities of the second class wherein, as in the laws affecting the Kansas City Board, the body is designated, but not named a Board of Police, the members to be called “Police Commissioners of the City of-.” [2 R. S. 1909, secs. 9094 et seq.]

The members of the police force of St. Louis and Kansas City are officers of their respective cities and also of the State. [3 R. S. 1909, secs. 9825, 9782; State ex rel. v. St. Louis, 174 Mo. 125; State ex rel. v. Stobie, 194 Mo. 14; State ex rel. v. Kimmel, 256 Mo. 611.] Nevertheless, it has been settled by several decisions of this court that the municipal police officers, including the members of the police boards of the two cities, constitute a part of the measures adopted by the State to preserve peace, and protect the legal rights of persons. [State ex rel. Hawes v. Mason, 153 Mo. 23; State ex rel. Goodnow v. Police Commissioners of Kansas City, 184 Mo. 109, 133; State ex rel. v. Jost, 265 Mo. 51; State ex rel. v. Jost, 269 Mo. 248.] The reasons for that rule of law and the authorities which support it, are set forth fully in the cited cases and need not be repeated; but we remark that the expense of the police systems, including the board of police of the cities, is borne entirely by the municipalities—is paid out of their treasuries. The mode of raising the necessary funds in Kansas City (and the mode in St. Louis is the same), is prescribed in a section of the Revised Statutes, which makes it the duty of the board of police to estimate, at the beginning of each fiscal year, the sum of money that will be needed during the ensuing fiscal year, and certify their estimate to the council or municipal assembly of the city, which body is required to appropriate the amount of the estimate in the first apportionment ordinance of the fiscal year, and the appropriation is payable out of the next annual revenue of the city. [3 R. S. 1909, sec. 9778.] But though the city carries the expense of the Board of Police and of the police system generally, it does this pursuant to a law of the State, which it has no discretion about obeying. That is, in raising and appropriating funds to support the system the city acts as an agent of the State. [State ex rel. Hawes v. Mason, 153 Mo. 23; State ex rel. v. Jost, 265 Mo. 51.]

The pertinency of the foregoing observations and authorities to the point in hand in the present case, consists in their demonstration that the Board of Police and the police system of Kansas City do not compose a department of the municipal government, and hence the rule that no action will lie against a department of a municipality does not control the question of the liability of the Board of Police or the Police Commissioners of Kansas City to be sued. The health department, water-department, sewer department or any other department or utility of a city, unless expressly made suable by statute, cannot be sued either on a contract or for a tort; and this for the reason that if liability exists, the city itself is the party liable and not the particular department the conduct of which gave rise to the cause of action. Most of the authorities • cited in the brief of appellant were disposed of according to that rule; therefore are not in point in the case before us. [1 Thompson on Corporations, sec. 21; Appleton v. Water Commissioners of City of New York, 2 Hill, 432; Swift v. Mayor of New York, 83 N. Y. 528; Gardner v. Board of Health, 10 Selden (N. Y.) 410; Rauh v. Commissioners of Parks, 66 How. Prac. 368; Madden v. Kinney, 116 Wis. 561.]

The manner in which the expense of the police system of Kansas City is defrayed is pertinent, too, for this reason: although the system is a state institution, as the cost of it is paid out of the city treasury, the items of the cost would not be embraced within the statute which requires the State Auditor to “audit, adjust and settle all claims against the State and payable ont of the Treasury,” (meaning out of the State Treasury). [3 R. S. 1909, sec. 11813.]

The facts and the law affecting plaintiff’s demand being as we have stated, the demand can be presented for payment neither to the officials of Kansas City nor to those of the State; but must be presented to the Police Commissioners, and if they refuse payment, plaintiff’s recourse by action, if it has any, must be against the Commissioners, either sued in the name of a distinct entity as was done in the present ease, or in their individual names, but in their official capacity. The precise question is as to the proper defendant or defend-' ants rather than whether the Board of Police is a quasi-corp oration.

II. Before taking up the matter of practice, we will notice the contention of defendant that the contract declared on was one the Police Commissioners were without power to make, since the statutes authorized “the renting of apparatus for police alarms,” a phrase said to imply that such apparatus should not be purchased. [3 R. S. 1909, sec 9778.] But the commissioners were empowered and required to employ a permanent police force for the city and to “equip and arm” the force as “they may deem necessary.” [R. S. 1909, sec. 9776.] There was the further requirement that “the cost of station houses, the renting of apparatus for police alarms, fire alarms or the pwchase of new or additional equipment of arms or other apparatus,” should be included in the estimate made by the hoard of the expenditures for a given fiscal year. [Sec. 9778.] The power given to rent apparatus for alarms must be read along with the powers “to arm and equip” the police force as the board might deem necessary, and to purchase additional equipment of arms or other apparatus. When thus read it is apparent the power to rent alarm apparatus was not intended to exclude purchases when the latter were deemed necessary. Probably tbe renting referred to tbe use of tbe telephone system of the city, or other facilities the board could obtain without buying. In any view, when wo regard the broad authority conferred to purchase apparatus and equipment, the authority to rent alarm and fire apparatus is plainly non-exclusive of the right to purchase.

The contract being within the powers of the board, it was valid and there ought to be a remedy to enforce the obligation of it. We reject the proposition that if the contract was binding, then the only remedy to enforce it is the writ of mandamus, and think that writ will not run on the facts. The dispute is about whether the Board of Commissioners is bound by a contractual obligation, a question the plaintiff has the right to affirm and which the board may deny for various reasons—for example, that the signal boxes were not in compliance with the specifications of the contract, or 'have never been delivered or tendered, or have been paid for, or the obligation to take them has been released. The facts show neither a merely ministerial act for the board to perform, nor an obligation attended with circumstances which leave the board no discretion about performing it. On the contrary the facts show a controversy regarding the rights and obligations of the respective parties under the contract; a species of controversy lying beyond the scope of a mandamus proceeding. [19 Am. & Eng. Ency. Law (2 Ed.), p. 742; State ex rel. v. County Court, 39 Mo. 375.] The cited case is in point. The County Court of Howard County, acting by legislative authority, had offered a bounty to persons who should volunteer for state military service, and the relator sought by the writ of mandamus to compel payment of the bounty to himself. The court held he was entitled to payment, but held also that it would not be compelled by mandamus, the right involved being a common law one arising out of a binding contract between the county and the petitioner, for which there was an ordinary legal remedy. The appropriate proceeding for a claim like the plaintiff’s is an action at law wherein either party may demand a jury, and the claim be established, perchance, by the verdict and judgment—a judgment not to be satisfied out of the property of the members of the board; nor perhaps out of the'property of the board, if there be any thus owned, but out of the city treasury, and which the city would be bound to pay after it was included in the estimate of expenses made by the Commissioners ; and its inclusion therein could be compelled by mandamus. That was the view taken in an action against a county on road warrants wherein it was contended mandamus should have been asked. Replying to the proposition, the Supreme Court of'South Dakota said it was clearly untenable, since the county court denied liability, asserting some of the warrants had been paid, and all were illegal; wherefore it was necessary “the rights of the parties should be determined by the judgment of the court in an ordinary action, and not in the first instance by mandamus.” [Custer County Bank v. Custer County, 18 S. Dak. 274, 277.]

III. The principal position taken for plaintiff is that as the Board of Police of Kansas City is not a department of the city government, but is an agency or instrumentality of the State, established to assist in maintaining public order and security, the board must be trfted as a quasi-corp oration and capable ot being sued as a corporation. The petition says the board is a guasi-public corporation, a term used to denote private incorporated companies with duties of a public nature, like railway companies, but the meaning is that the board is a public quasi-corporation like counties, school districts, etc., when they have not been endowed with full corporate capacity, [1 Beach on Pub. Corp., sec. 3.]

For defendant it is contended the Police Commissioners partake in no degree of the nature and powers of a corporation, and do not constitute one of a perfect or of a gwasi-charaeter, but on the contrary are a group of officials, and hence no action will lie ágainst the board as a distinct entity and in a name of its own, or in the names of the members sued in their capacity as officers. Even if the Police Commissioners compose a body corporate, as plaintiff insists, in the absence of a statute giving the body a distinctive name whereby it may sue and be sued, it does not follow, according to authorities we have found, that an action will lie against it by any name a suing plaintiff may choose to adopt for it, nor by any other name or style than the names of its mem...bers; nor does it, follow, as is contended for the defendant, that if the board is not a corporate body, an action based on a. valid contract made by it will not lie against the members in their own names but not in their personal capacity. It is accepted law that when public officers are entrusted with definite powers and duties, and in the course of their duties and acting within their powers, they give rise to legal rights in other persons, especially when such rights grow out of a contract, and no way exists to enforce them except by an action against the officers as such, an action will lie against them. This is a doctrine-of the common law and statutes on the subject are mainly declaratory of the common law rule. [Rouse v. Eddy, 18 Johns. (N. Y.) 407; Silver v. Cumming’s, 7 Wend. 181; The Supervisor of Galway v. Stimson, 4 Hill (N. Y.) 136.] And the successors of the officers who entered into the contract may be sued on it. [Palmer v. Vandenbergh, 3 Wend. 193; Todd v. Birdsall, 1 Cowen, 260.]

IV. The difficulty of defining with precision a (pmsi-corporation has been noticed by both courts and commentators. In an opinion by Justice Mii/lbr of the Supreme Court of the United States, it was said the meaning of the term was not clear; that it was a phrase applied to a body which exercised certain funcVons of a corporate character, without having been created a corporation by any statute, general or special. [School Dist. v. Ins. Co., 103 U. S. 708; and see note to Todd v. Birdsall, 13 Am. Dec. 522, wherein it was said an exact definition was impossible.] In some bodies which have been accorded corporate character in judicial rulings, without having been incorporated by an express act of the Legislature, the dominant fact was a defined territory with power to act and contract through its governing officers, such as counties and school districts. [Commissioners of Hamilton County v. Mighels, 7 Ohio St. 109; People v. School Trustees, 78 Ill. 136.] Tn other instances groups of persons entrusted with public functions, like overseers of highways, boards of education, etc., have been regarded as gmsi-bodies politic. [Rouse v. Eddy, 18 Johns, (N. Y.) 407; Conservators of River Tone v. Ash, 10 Barn. & C. 349; Ingersoll on Pub. Corp. secs. 31 to 33, inclusive, and numerous citations.] It is obvious that if the Police Commissioners compose such a body it is one of the latter class.

In no decision examined by us during a long search for precedents have we found a statement of how many or exactly what coiporate powers must be exercised by a set of officials to constitute them a body politic, when they are not so denominated by the statute which created them. "We quote what was said on the subject in an opinion that was praised by an accurate commentator in the aforesaid note to Todd v. Birdsall for stating “clearly the principles upon which it may be determined in any particular instance that a body is a corporation though not declared to be so.” The inquiry related to a levee district organized under the laws of California:

“A corporation, as defined by Section 283 of the Civil Code ‘is a creature of the law, having certain powers and duties of a natural person.’ Under this broad definition, the levee district has the attributes of a corporation. It is ‘a creature of the law, and has certain duties of a natural person.’ Through the board of supervisors, who are its managing agents, it may make contracts, incur debts, employ servants and agents and perform many other acts which pertain to natural persons. It is also endowed with a corporate name, and has perpetual succession. Those are the principal attributes-of a corporation, and though the statute does not in terms declare it to be a corporation, it will be sufficient if the intent clearly appears.” [13 Am. Dec. l. c. 524; and also Dean v. Davis, 51 Cal. 406.] The same note gives Bouvier’s definition of the term “quasi-corporation” as one “applied to those bodies or municipal societies, which, though not vested with the general powers of corporations, are pet recognised by the statutes or immemorial usage, as persons or aggregate corporations, with precise duties which may be enforced, and privileges which may be mantained by suits at law.” [Bouvier’s Dict. title, Quasi-Corporations.] (Italics ours).

Dicta can be found which import that any set of officials invested with power to act as a unit, particularly in taking on contractual obligations, constitute such a corporation; but a close reading will discover often either an age-long usage to treat the body as a quasi-corporation or expressions in, or powers granted by, a statute which plainly denote the intent to incorporate. [Rouse et al. as Overseers of the Poor v. Moore et al. as such Overseers, 18 Johnson (N. Y.) 407; Winslow v. the Commissioners of Perquimans County, 64 N. C. 218; Clarissey v. Metropolitan Fire Dept., 1 Sweeney, (N. Y.) 224, 227; Todd v. Birdsall, 1 Cowen (N. Y.) 260; Gross v. Ky. Board of Managers Columbian Exp., 105 Ky. 840; Ingersoll, Quasi Corp. sec. 33.]

In the North Carolina case the only point for decision was as to the proper form of action, the statute for the government of counties having expressly declared them to be bodies politic and suable “in the name of the Board of Commissioners.” In Clarissey v. Fire Department (the authority mainly relied on by defendant in this case), we find that in the act creating the Metropolitan Fire Department it had been given all the powers of a predecessor department, which had been declared “a body politic in fact and in name’’.and made capable of suing and being sued. The Kentucky ease is more in point, but the real question in it was whether the board represented the State in such a way as to render a suit against the board one against the State itself—an. inquiry the court answered in the negative by holding the board, in view of its powers, was an independent corporation; a conclusion dissented from by one judge on the ground that “there was nothing in the duties of the board which indicated that it was incorporated, or that it was to transact the business as an incorporated company.”

"We consider it an extravagant notion that every officer or body of officers vested with power to make contracts to a limited extent which are not binding on them personally is, by that fact alone, made into a corporation. Such a doctrine would be in effect the investing of public officers with a corporate. character regardless of the purpose of the Legislature in the matter. If a power is given to officials which can be exercised only by a corporation, as for example, to hold the title to real property in succession, such a grant may be taken to show a legislative intent to create a corporation sub modo, [The Conservators of River Tone v. Ash, 10 Barn. & C. 349.] And from the perplexing decisions on .the subject, it seems to us that the most influential circumstance whereby to determine whether or no public officials are gws-i-corporations is that the law, either by immemorial usage or by the implications to be drawn from relevant enactments, has recognized them as such, without expressly declaring them to be; but many cases speak of a body expressly incorporated as a quasi-entity if it is not given the full powers of a municipal corporation.

In this country every corporation, whether of full powers or limited, must now emanate from the Legislature; at any rate when it is of a variety not sanctioned by usage.. Hence, the remark in Rouse v.'Moore, supra, that overseers of the poor were town officers coeval with the settlement of the country.

No one will say Police Commissioners are bodies politic by old usage, and nothing can be pointed to in the various acts and statutes relating to the Kansas City Police Commissioners that indicates an intention on the part of the Legislature to erect them into a corporation except a power to make contracts within a small compass—a power not expressly conferred, but to be implied from the authority given to organize and equip the police system. The Commissioners are not authorized to use a seal; they are never spoken of as a corporation and in almost every mention of them are referred to in the plural number, and this has been true from the creation of the board in 1874; they have been given no distinctive name, certainly not the name of the Board of Police Commissioners, which is the name applied to the defendant in the present case. What the statutes say on the subject is, “There is hereby created and established in every such city a board of police to be called the police commissioners of such city.” If any name is given to the board in the statute it is found in the expression “to be called the police commissioners ”—words, which, far from indicating the intention to create a body politic, simply denote three officers.

Many boards and commissions for public purposes have been established in this State, and the manner in which this has been done and the different powers conferred, suggest that the Legislature has pursued a policy of selection in the matter of incorporating them. Some of them were created corporations with enumerated faculties. This was done in the following instances, and perhaps in others: The Prison Commission, composed of three members, declared a body corporate under the name and style of the “State Prison Board,” with the right of suing and being sued, and to use a common seal. [Laws 1917, p. 157.] Similar provisions were made regarding the Board of Agriculture (R. S. 1909, sec. 596) ; and in the case of the Missouri State Horticultural Society (R. S. 1909, sec. 614); in that of the Missouri State Poultry Association (R. S. 1909, sec. 663); in the case of school districts, whether common schools or city districts (R. S. 1909, secs. 10834, 10979); so of special road districts (R. S. 1909, sec. 10577; Amended Laws 1911, p. 370); so with the Industrial Home for Girls (R. S. 1909, sec. 1544); and with drainage districts (R. S. 1909, sec. 5499; Amended Laws 1911, pp. 205 et seq.); and “Public Reservations” (R. S. 1909, sec. 1.0257); and of townships (R. S. 1909, sec. 11657).

In some instances, without expressly declaring the particular body a corporation, the Legislature has conferred on it the power to sue and be sued, etc., by a certain name: An example is the charity board in some cities, which the statutes say shall be known “as the Charity Board of the City of-,” and have power to sue and be sued (R. S. 1909, see. 1322). The various eleemosynary institutions of the State which are managed by boards are given a general power to maintain actions “in the name of the board of managers of such institution” (R. S. 1909, chap. 1.9, art. VI, sec. 1389). This provision applies to the twelve institutions named in said article. In addition to that general power to sue in the name of the board of managers, some of the boards are especially authorized to maintain actions for trespass to the property managed by them. This is true of the State Sanatorium (R. S. 1909, see. 1462); School for the Blind (R. S. 1909, sec. 1476); School for the Deaf (R. S. 1909, sec. 1493.); Missouri Training School for Boys (R. S. 1909, sed. 1537), and'the Industrial Home for Negro Girls, the board of which possesses the power by virtue of a section making the laws applied to the other institutions apply to that one (R. S. 1909, sec. 1569.) The Public Service Commission of the State of Missouri is accorded the right to sue and to be sued, and to have a seal. (Laws 1913, p. 564).

But there are- other boards and commissions which the Legislature has neither created corporations, nor declared capable of suing’ or being sued by a certain name, viz: State Board of Dental Examiners (R. S. 1909, sec. 5485); State Board of Health (R. S. 1909, secs. 6651 et seq.); County Boards of Health (R. S. 1909, secs. 6663 et seq); Barbers Board of Examiners, which is authorized to use a seal (R. S. 1909, sec. 11.86); State Board of Education (R. S. 1909, chap. 106, art. 11); Banking; Department (R. S. 1909, chap. 12, art. 1); State Board of Charities (R. S. 1909, chap. 19, art. 1); 'Board of County Visitors (R. S. 1909, secs. 1329 et seq.); State Board of Mediation and Arbitration (R. S. 1909, chap. 67, art. 3; Board of Pharmacy (R. S. 1909, chap. 42); Tax Commission—given a seal (Laws 1917, p. 542); State Board of Equalization (R. S. 1909, chap. 117, art. 4); County Boards of Equalization (R. S. 1909, chap. 117, art. .3); Boards of Police.

The title to whatever property may be acquired by the action of the Police Commissioners of Kansas City, does not appear to be vested in them as a body corpo-' rate, although they have the care and custody of it.

Another fact worthy of notice is that both the St. Louis and Kansas City Police Commissioners have sued and been sued often, and always by their individual names, but as a board. [Francis v. Blair, 89 Mo. 291: State ex rel. Hawes v. Moore, 153 Mo. 23; State ex rel. v. Jost, 265 Mo. 54; State ex rel. Campbell v. Police Commissioners, 14 Mo. App. 297; and there are other cases.] As most of said proceedings were extraordinary and where mandates were sought to compel the commissioners to do certain things, perhaps it was proper to name them as parties, even if the boards were quasi-corporations. But when the board was the complaining party, the members composing it were named as relators and not the board as an entity.

A direct authority for the proposition that the Police Commissioners do not constitute a body politic is the case of Brotherton v. Board of Police Commissioners of Baltimore, 49 Md. 495, wherein said board was sued as the board is-in the case at bar, and a demurrer was filed to the declaration. The Supreme Court of Maryland held the Baltimore board was an official body created by the State for the purpose of admininstering police duty in the City of Baltimore, but that it did not exist as a bod}*- corporate. In that case the Legislature had endowed the board with a common seal, but had not given it other corporate faculties. For the reasons we have set forth we hold the same way in respect of the Kansas City Commissioners.

In a New York case where officers and collective bodies not strictly corporations, but invested with some corporate powers, were conceded the right to sue in respect of matters committed to their charge', it was held the suit must be in the name of the officers and not in the name of tie office, with the addition of the title of the office to show the capacity in which the defendant was sued. [Galway v. Stimson, 4 Hill, (N. Y.) 136.] In that case the officer was not named as plaintiff and the court said it had met with uo precedent for such an action. There was a statute which prescribed the procedure, but the opinion appears to have treated the rule as one existing* independently of the statute. Be that as it may, our conclusion is that, though the Board of Police in-the matter of contracting* for certain purposes, acts as an aggregate body and to that extent quasi, or as if it were a corporation, yet not having been endowed with a name or other corporate attributes, actions against the board should be instituted in the names of the members and in their official character.

The names of the Police Commissioners are mentioned in the petition both in the title and in the body, but not by way of making them parties, and said mention cannot be accepted as sufficient to make them parties and authorize them to be served with process, as they must be if parties. -The board is treated as an entity and as a single defendant, and therefore service of process on the threet members was not necessary, bnt only on the chief officer. [Cloud v. Inhabitants of Pierce City, 86 Mo. 357.]

V. The proposition that the Commissioners in so far represent the State that a suit against them is in effect one against the State, has not been presented nor considered; and we will only remark that the ultimate liability on the contract declared on is the city’s liability, not the State’s.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: RAGLAND, C.

license: Public Domain

text:
    PETER KIBBLE v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant.
    Division One,
    December 30, 1920.
    1. NEGLIGENCE: Instruction: Knowledge of Peril: Inference.'. The fireman told the engineer, when the train was some distance from a railroad crossing, that he could not gfet his injector to work, to which the engineer replied, "All right; I will put mine on, and when we get to the crossing you get down and fix it, and I will wait for you.” When the train stopped at the crossing, the fireman got down, but the evidence does not show that the engineer had actual knowledge that he had done so, and owing to theiy relative positions he could not have seen the fireman leave the cab. Held, that the jury could have found that the engineer, in the exercise of ordinary care, would not have forgotten the directions he had given the fireman and would have ascertained whether the fireman had followed his instructions before starting the train; and it was not error, therefore, to submit to the jury for determination whether the “fireman, while in the performance of his duties and acting under the instructions of the engineer, got upon the ground for the purpose of working upon the injector, and whether, while he was so engaged, the engineer, knowing, or in the exercise of ordinary care should have known, that the fireman was upon the ground in a position likely to be injured by moving said engine, and carelessly and negligently started said engine without giving the fireman any warning of his intention so to do.’

      2. -: -: -: Within Scope of Pleading. Where the petition charged that the defendant, “through its engineer carelessly and negligently started said engine without warning the plaintiff,” an instruction telling the jury that, “if the engineer, Snowing or in the exercise of ordinary care should have known that plaintiff wp.s on the ground in a position likely to be injured by moving said train, and carelessly and negligently started said engine without giving plaintiff any warning of his intention to do so,” etc., was clearly within the scope of the pleadings.
    3. -: —--: Warning of Starting Train: Whistling Signal. Where the engineer had told the fireman to get down and fix his injector when the train reached a railroad crossing and that “I will wait for you,” and the fireman got down and went to work on the injector, a whistling signal indicating that the crossing was clear was not a warning that the engine was about to start.
    4. -:-: Measure of Damages: Permanent Injuries. Evidence that plaintiff’s right foot and ankle were crushed, necessitating an amputation; that the leg has not healed; that drainage tubes had been inserted in the wound and through these pus and particles of bone are being thrown off; that plaintiff is thirty-two years of age, had been working as a locomotive fireman for eight or nine years, and earning at the time of his injury $125 per month, is a sufficient basis for an instruction telling the jury that they should “take into consideration plaintiff’s future suffering and future loss of earpings.”
    5. -: -: Harmless Testimony. It is not reversible error to refuse an instruction for appellant directing the jury to disregard certain testimony which went in without objection and which, whether competent or incompetent, could not have injuriously affected appellant.
    6. -: Evidence: Contrary to Physical Pacts: Arbitrary Deductions: Directed Verdict. When established physical facts and common observation and experience conflict with the testimony of witnesses, such testimony does not amount to substantial evidence of the alleged facts testified to and cannot be accepted as the basis of a verdict and judgment. But so frequently do unlooked-for results attend the meeting of inter-acting forces that courts should not indulge in arbitrary deductions from physical law and fact, except when they appear to be so clear and irrefutable that no room is left for the entertainment by reasonable minds of any other conclusion. And in this case, while plaintiff’s testimony as to the position of his right foot being “clear down on the ground” under his body at the same time he placed it upon the step two feet above is so in conflict with common experience and observation as to be incredible, yet it only affected his credibility as a witness, and under the other circumstances it cannot be said that the jury was not warranted in finding that his injury was proximately caused by the negligent starting of the train.
    7. EXCESSIVE VERDICT: $20,000: Loss of Leg. Where the only permanent injury is the loss of a limb an award of damages in excess of ten thousand dollars, according to a long line of decisions, will not be allowed to stand.
    Appeal from Daviess Circuit Court.-—Hon. Arch B. Davis, Judge.
    Affirmed (on condition).

      H. J. Nelson and J. G. Trimble for appellant.
    (1) The court should have given the peremptory instruction to find for defendant asked at the close of all the evidence in the case for the reason that plaintiff had utterly failed to make a case either under his pleadings or the evidence, (a) In this petition plaintiff alleged two acts of negligence—in furnishing a defective locomotive and in starting the locomotive without warning. The first charge was abandoned on the trial and the second was overthrown by plaintiff’s testimony in that he says he heard the warning signals as he got off the engine and yet walked 9 feet and 10 inches to the injector thereafter. Plaintiff must recover, if at all, on the specific negligence charged and proved. Haake v. Davis, 166 Mo. App. 249; Bobbitt v. United Railways, 169 Mo. App. 424.. (b) The physical facts show that plaintiff’s testimony as to how he received his injury is absolutely unworthy of belief. Where plaintiff’s testimony is in direct contradiction of well-known physical facts and principles, his testimony will not be accepted. Davidson v. Railroad, 164 Mo. App. 701; Sexton v. St. Ry., 245 Mo. 254; Giles v. Railroad, 169 Mo. App. 24; • Phillips v. Railroad, 170 Mo. App. 416; Yonkers v. Railroad, 182 Mo. App. 558; Fagg v. Railroad, 185 Mo. App. 79; Landrum v. Railroad, 178 S. W. 273; Guffey v. Harvey, 179 S. W. 729; Schaub v. Ry:, 133 Mo. App. 444; Gessner v. St-. Ry., 137 Mo. App. 47. (2) Plaintiff’s instruction one was erroneous in that it submitted to the jury the question of plaintiff acting under the instruction of the engineer when no such fact was pleaded in his petition. Said instruction was erroneous in that it gave the jury a roving commission to speculate on whether the engineer “should have known” plaintiff was on the ground. It was also erroneous in submitting to the jury the question of whether the> engineer started the engine without warning, when the evidence shows warning was given and heard by plaintiff when he was in a place of perfect safety, (a) Instructions should be within the pleadings and also within the evidence. It is error to give an instruction on a theory not made in the petition or on one which there is no evidence to support. Hufft v. Railroad, 222 Mo. 286; Moellman v. Lumber Co., 134 Mo. App. 485; Degonia v. Railroad, 224 Mo. 564; Black v. St. Ry., 217 Mo.-672; Shumacher v. Breweries, 247 Mo. 141; Small v. Ice Co., 179 Mo. App. 456; Kendrick v. Harris, 171 Mo. App. 212. (b) It was error, to give the instruction for the reason that it is so verbose as to be misleading and confusing. Stid v. Railroad, 236 Mo. 382. (3) It was error for the court to give instruction number four allowing the jury to find for future suffering and future loss of earnings, there being no proof of the probable future suffering or probable amount of loss or earnings. Plaintiff was not totally disabled. It is error to give an instruction on a measure of damages allowing future expenses or loss not proven in the testimony. Parris v. Crutcher, 189 Mo. App. 150; Wellman v. St.. Ry., 219 Mo. 126; Modlagl v. Iron & F. Co., 248 Mo. 587; Moeliman v. Lumber Co., 134 Mo. App. 485; Smith y. Railroad, 108 Mo. 251; Slaughter v. Railroad, 116 Mo. 269; Duke v. Railroad, 99 Mo. 347. (4) The court erred in refusing to give instruction D-l for the reason that the bulletin spoken of in the evidence had nothing to do with the accident. Tt was not pleaded and did not contribute to the accident. Therefore, it should have been taken from the jury to prevent its use, as it was used, to prejudice the jury. Houston v. Railroad, 129 Mo. App. 586; Torreyson v. United Rys., 144 Mo. App. 638; Barnes v. St. Joseph, 139 Mo. App. 545. (5) The verdict is so excessive as to permit only one conclusion, and that is that it is the result of prejudice and passion. Excessive verdicts are not allowed in this State and, when "they are the result of passion and prejudice, they are not cured by remittiturs. Neff v. City of Cameron, 213 Mo. 350; Wellman v. St. Ry., 219 Mo. 126; Sexton v. Railroad, 245 Mo. 254; Johnson v. Brick Co., 205 S. W. 615; Brady v. Ry., 206 Mo. 509.

      J. W. McKnight and Mytton & Parkinson for respondent.
    (1) The defendant’s contention that the whistling' signals given by the engineer as the train came to a stop at the crossing were a warning to plaintiff that the train was about to proceed is absolutely and overwhelmingly refuted by the evidence. (2) The physical facts in the case corroborated and confirmed the plaintiff’s evidence as to how he received his injury. Dixon v. Omaha & St. Louis Railroad, 124 Mo. 140. (3) Plaintiff’s Instruction No. 1 correctly stated the law and was properly given. (4) Plaintiff’s Instruction No. 4 on the measure of damages was within the averments of the plaintiff’s petition, within the evidence, and likewise within the decisions of the courts. State ex rel. v. Reynolds, 257 Mo. 19; Bethel v. St. Joseph, 184 Mo. App. 388; Gamer v. Kansas City Bridge Co., 194 S. W. 82; Bamber v. United Rys., 192 S. W. 953; Winter-man v. United Rys., 203 S. W. 486; Sang v. St. Louis, 262 Mo. 454. (5) The verdict was not excessive. The contention that $20,000 affirmed by the trial judge, is excessive for the injuries sustained by this plaintiff, in view of the cheap value of money, must be without merit. Roeder v. Railroad, 164 N. Y. S. 167;, Railroad v„ Carnahan, 118 Ya. 46; Lee v. So. Pac Co., J01 Cal. 118; Hess v. St. Joseph Ry. Co., 30 Can. S. C. 218; Railroad v. Brogan, 15.1 S. W. 699; Bump v. Railroad, 141 1ST. Y. S- 1009.
   RAGLAND, C.

Action for personal' injuries, alleged to have been negligently caused by defendant while plaintiff was in its employ as a locomotive fireman and engaged in interstate commerce.

On the 23d day of May, 1917, the plaintiff was firing one of defendant’s engines, which was hauling a mixed train of freight and passenger cars from Osborn, Missouri, to Kansas City, Missouri. When the train reached a point where defendant’s road crosses the Rock Island Railroad and came to a stop, plaintiff got down out of the cab on to the ground to adjust the injector on his side of the engine. While so engaged the engine stalled. In attempting to get back on it, his right foot slipped off the engine step, went under the wheels and was crushed.

The petition charges the negligence as follows:

“That on said date at a point near the plací; where the defendant’s railroad track crosses the track of the Chicago, Rock Island & Pacific Railway Company it became necessary to stop said engine for the purpose of adjusting the injector upon said engine, and after said engine was stopped, and while the plaintiff was in the work of and completing the adjusting of the same, and before he had gotten upon said engine and while he was in the performance of his duties, and working in interstate commerce, the defendant company, through its agents and servants and engineer, carelessly and negligently started said engine without warning this plaintiff, thereby causing said engine to run against, upon and over the plaintiff, then and there and thereby crushing and mangling his right foot and ankle, necessitating its amputation.”

The answer is a general denial.

The accompanying picture of the engine on which-plaintiff was working at the time of his injury and which was introduced by him in evidence will help visualize the relative positions of the different parts of the engine, and the situation generally, as described by the witnesses.

The boiler extended back through the cab to the gangway between the engine and. the tank. The engineer’s seat was on the right and the fireman’s on the left of the boiler. While occupying their respective stations indhe cab they could not see each other. There were two injectors on the engine, one on the right side' and one on the left. The one on the right was operated by a lever in the engineer’s side of the cab; the one on the left by a similar lever in the gangway on the fireman’s side. By the' use of these levers the valves in the primers, through which the water flowed into the boiler, could be opened and closed. They were operated independently of each other, and the duty of keeping the water at the proper level in the boiler seems to have been left entirely to the fireman. The primer on the fireman’s side was low down between the drive wheels of the engine. Sometimes this primer “stuck” só that it could not be operated with the lever in the gangway; it was then necessary f.or the fireman to get down on the ground and loosen it. The' driving rod in its vertical motion traversed a space about two feet wide—down and up—at each revolution of the wheels. It passed just outside of the primer, having a clearance of one and three-fourths inches. When the engine came to a stop and the plaintiff got down out of -the cab to adjust the primer the driving rod was at its highest level.

The track at the point where the engine stopped was rock-ballasted. The ballast filled the spaces beteen the ties up level with’their surfaces. The ties extended fifteen inches beyond the rail, and the ballast beyond the ends of the ties about two feet.. From the ends of the ties the ballast gradually sloped down, the outer edge being approximately six inches lower than the top

of the ties. The surface of the ground next to the ballast was about two feet lower than the top of the tie level.

The two large horizontal cylinders shown by the picture are air-drums. There was an iron step extending down from the gangway, and two hand-holds or grab-irons on each side thereof, one being on the engine and the other on the tank. According to measurements made by one of defendant’s witnesses, the front air-drum, which extends down lower than the one in the rear, was four feet, and the iron step one foot and ten inches, above the top of the ties. No measurements are given of the distances of the grab-irons from the surface of the ties. Plaintiff gave three and a half feet as an approximation of the height of the one on the engine, but as shown by the picture it d.oes not extend down to the level of the bottom of the front air-drum. The distance from the primer to the step at the gangway was 9 feet and 10 inches'.

Plaintiff was the only witness introduced in his behalf. He says that when they were about a half mile out of Braley, the last station before the Rock Island crossing was reached, he told the engineer that he could not get his injector to work and that the engineer replied, “All right; I will put mine on, and when we get to the crossing you get down and fix it, and I will wait for you. ’ ’ However, when the engine arrived at the crossing, it came to a stop, the engineer gave the usual whistling signal and, finding the crossing clear, started on regardless of plaintiff’s movements. The engine was headed south.

So far as the record discloses, no one saw the plaintiff when ho left the cab, nor at any time thereafter until he was discovered, by one of the brakeman on the moving train, lying along the side of the track with a crushed foot. His case, therefore, with respect to the manner in which he received the injury and his movements at and immediately prior to the time of its infliction, rests entirely upon his own testimony. What happened after he'left the cab we will let him tell in his own language.

Direct Examination.

“Q. When did you get off the engine? A. Just as the engine came to a stop I took my coal pick and got down and walked to the injector about six or eight feet, and I stuck my pick in that hole there to turn that to loosen it., „

“Q. Which way were you facing? A. I was facing south.

“Q. Which side of the engine would you be on? A. On that side. (Indicating left-hand of engine facing south).

“Q. When you were over here (indicating) which way were you facing? A. Facing south.

“Q. Were you upright or bent down at that time? A. No, sir; I was down (indicating stooping position) in this position, making this turn, facing south.

“Q. What happened' to you? A. While I was down here making this turn the engine started; something struck me on the shoulder (indicating) and knocked me down flat along the track, it might have been a drive-rod where the side rod comes down, or it might have been the air-drum, and with this leg (indicating right leg) square under me.

“Q. Which leg? A. My right leg.

“Q. Did it knock-you down. A. Yes, sir.

“Q. What was the condition of your knee with reference to being loose or in a bent position? A. My leg was in a position that I couldn’t get out of the way; I suppose the track was a little rolling there, and if I could have rolled out and got. out of the way without getting off of this leg I probably could have done that, but I couldn’t, and the only thing I could do then was to get on the engine.

“Q. Suppose you would have laid in the position you were, what would have happened to you? A. It would not clear a. man there, and it would have mashed him to pieces; the tank truck or step would have caught me.

“Q. What did you attempt to do? A. I attempted to get on the engine to save myself.

“Q, What did you do? A. I put my foot on the step and g’ot partly up and grabbed the grab-iron—I couldn’t say for sure whether I had hold of the grab-iron or not—and my foot slipped off the flange of the step and went under the wheel (indicating). It all happened in a few seconds.

“Q. What did you do when your foot was run over ? A. After the tank ran over it, it was bound over the rail until I couldn’t pull my leg out and I had to take my hand and pull my leg off the rail; every wheel was cutting it a little higher every time.

“Q. IIow high was this step that you speak of from the ground? A. about two feet.

“Q. Did the hand-hold extend up and down there (indicating)? - A. Yes, sir; it is connected up right at the gangway about three feet and a half.

“Q. Was there any way you couid have saved yourself in the position you were except in the way you did save your life? A. No, sir, I think not.

“Q. Did the engineer give you any warning that he was going to start the engine? A’. No, sir.”

Cross-examination.

“Q. And when you came to the Rock Island crossing you dropped down on that side with your pick in your hand to loosen it? A. After I had told the engineer .that my overflow was stuck, that was a half mile out of Braley, and he told me to fix it when we got to the Rock Island Crossing. ...

“Q. You stuck your pick point in the clevis joint? A,. Yes, sir.

“Q. And gave a little turn and pulled yonr pick out? A. No; while I had my pick in there giving it this turn, that is when the engine started up and knocked me down.

“Q. What became of your pick? A. I suppose it was still lying there; I don’t know.

“Q. It was not caught by the driving rod coming down? A. I don’t recollect taking it out.

- “Q. What was it that struck you? A. It could have been the side rod or the air-drum.

“Q. One of those two? A. Yes, sir.

“Q. Where did it strike you? A. On the shoulder and kind of on the back (indicating).

“Q. On your right shou'der, .and how far down the back? A. Down about the shoulder blade.

“Q. That knocked you down? A. Knocked me down, and put my right leg under me, clear on the ground.

“Q. As you said when your deposition was taken, it knocked you down flat? A. Wouldn’t that be down flat?

• “Q. That is the way you put it in your deposition, didn’t you; isn’t that what you said, ‘clear down flat on the ground?’ A. I don’t know; the deposition will show, whatever it is.

“Q. (Exhibiting deposition): You signed this deposition there? A. Yes, sir.

“Q. And that question, No. 77, was asked you, ‘You don’t mean to say you fell clear to the ground?’ And you answered, ‘Clear down flat on the ground?’ A. Yes', sir. „

“Q. That is what you said then? A. Yes, sir.

“Q. That is correct? A. Yes, sir.

“Q. It was only one of those two things mentioned by you that struck you on the shoulder? A. It could have been something else; but then, that would be my idea of what it was.

“Q., What was it? A. I think it was the side rod.

“Q. The driving or. side rod that struck you on the shoulder? A. Yes, sir; I think so.

“Q. And that knocked you down? A. Yes, sir.

“Q. Then you undertook to get on the engine by taking hold of the grab-iron; with your left hand or right hand? A. It would be my right hand.

“Q. And at the same time you put your right foot on the step? A. Yes, sir; on the rim of the step; the step would be in this position (indicating); it is a rim here (indicating), and here it is flat (indicating).

“Q. Yon put your foot on the front rim? A. Yes, sir.

“Q. And your foot slipped off of the place where you put it? A. Yes, sir.

“Q. And it went under the wheel.? A. Yes, sir.

“Q. Do yon know whether you got hold of the grab- . iron or not? A. I wouldn’t say for sure whether I did or not; but I presume I got hold of it and my hand slipped off of it.

“Q. Yon think you undertook to take hold of the grab-iron with your right hand? A. Yes, sir.

“Q. Was it the grab-iron on the engine or the tank? A. On the engine.

“Q. There are two grab-irons? A. Yes.

“Q. Just a little piece.apart? A. Yes sir; just the width of the gangway, about two and one-half or three feet apart, but the one on the engine is lower than the one on the tank; it comes down like this (indicating), and the one on the tank comes straight up and down; it would be lower on the engine to get hold of than it would over there on the tank (indicating).”

It seems to be conceded that plaintiff was injured while employed in interstate commerce.

Other facts necessary io au understanding of the legal questions involved will he stated in the course of the opinion.

I. Under instruction numbered one given for the plaintiff, the court submitted to the jury for determination whether “plaintiff, . . . while in the performance of his duties and acting under the instructions of the engineer, . . . got upon the ground for the purpose of working; upon the injector . . . and (whether) while (he was) so engaged, the engineer, ; . . knowing, or in the exercise of ordinary care -should have known, that plaintiff was. upon the ground in a position likely to he injured by moving said engine, . . . carelessly and negligently started . . . said engine without giving plaintiff any warning of his intention” so to do. Appellant levels at this instruction a number of criticisms: (1) That it submitted to the jury the question of plaintiff acting.under instructions of the engineer, when no such fact was pleaded in the petition; (2) That it gave the jury a roving commission to speculate on whether the engineer “should have known” plain-was'on the ground; and (3) it submitted the question of whether the engine was started without warning, when the evidence shows that warning was given and that" plaintiff heard it. We think these objections all without merit.

The evidence did not show that the engineer had -actual knowledge that the plaintiff had gotten down on the ground. Owing to their relative positions, he could not have seen plaintiff leave the cab. But according to plaintiff’s testimony the engineer had previously said to him, “When we get to the crossing, get down and fix the injector, and 1 will wait for you.” He may have forgotten _having given this direction to the plaintiff, hut certainly the jury could have found that in.the exercise of ordinary care he would not have done so and that he would accordingly have ascertained whether plaintiff followed his instructions before starting the engine. With this evidence before them it was not necessary for the jury to speculate on whether the engineer “should have known” of plaintiff’s position.

The petition charged that defendant “through . . . its engineer, carelessly and negligently started said engine without warning the plaintiff.” As just pointed out the engineer’s instruction to the plaintiff was one of the constituent facts of the alleged negligence; it was therefore, clearly within the scope of the pleadings.

Appellant is in error in saying that the plaintiff had warning that the engine was about to move. The only warning given was the whistling signal indicating that the crossing was clear. This was not notice to plaintiff that the engine was about to start, because the engineer had told him that he would wait for him.

II. In the instruction on the measure of damages', the jury were told that they should take into consideration plaintiff’s future suffering and future loss of earnings—if any. The point is made that it was not warranted by the evidence. The evidence showed that plaintiff’s right foot and ankle were crushed, necessitating an amputation; that at the time of the trial the leg had not healed; that drainage tubes had been inserted in the wound and through these pus and particles of bone were being drawn off; that plaintiff was thirty-two years of ^ge; that he had been working as a locomotive fireman eight or nine years; and that he was earning at the time of his injury $125 a month. This evidence afforded a sufficient basis for the instruction. [State ex rel. v. Reynolds, 257 Mo. 19.]

III. The engineer, on the witness stand, said that he knew nothing about the injector on the fireman’s side being out of order, and that the plaintiff said nothing whatever to him about fixing it. On cross-examination he was asked if the defendant had not theretofore by bulletin directed its engineers to operate the injectors. On his admission that such was the case, he was further ashed why he did not obey the order. He replied that on that style of engine it was not handy for the engineer to work the injector, and that the fireman voluntarily did it. , In this connection he denied that he gave the fireman any instruction of any kind with respect to the injector on the occasion in question. The defendant asked the court to instruct the jury that the bulletin regarding the .use of the injector had no bearing on the case and, that they should entirely disregard it. This the court refused to do, and its action in that respect is assigned as error. The evidence went in without objection. Respondent insists that it was competent as bearing on the credibility of the engineer as a witness. In any event, it is not apparent how the defendant could have been injuriously affected by it. Certainly it was not so prejudicial as to warrant a reversal.

IV. Appellant’s chief contention is that plaintiff failed to make a case and for that reason it was entitled to a directed verdict. This, on the ground that plaintiff’s testimony is so at variance with well known physical facts that it has no evidentiary value.

When established physical facts and common observation and experience conflict with the testimony of a witness, such testimony does not amount to substantial evidence of the alleged facts testified to and cannot be accepted as the basis of a verdict and judgment. [Phippin v. Railway, 196 Mo. 321, 343; Sexton v. Railway, 245 Mo. 254, 272.] Yet, so frequently do unlooked-for results attend the meeting of interacting forces that courts should not indulge in arbitrary deductions from physical law and fact except when they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other. (10 R. C. L. 1009). Plaintiff’s testimony should be weighed in the light of these general principles.

According to the-plaintiff he was in a stooping position, facing south, the direction the engine would move when it started, at work on the primer. While in that position and so engaged, the engine started and something struck him on the shoulder, down about the shoulder blade, and knocked him down flat along the track with his right leg square under him. It is a matter of conjecture, because he does not say, whether he went down upon his face, his back, or his side, and whether with his feet, or head, toward the front of the engine. All that he states with respect to'his position at that juncture is: that he was down flat along the track— clear down flat on the ground—with his right leg square under him, and, because his right-leg was under him, he could not rod or get away from the moving train. His further statement is to the effect that, not being able to roll out of the way because his right leg was under him, he put his right foot on the engine step two feet above the surface on which he was lying. How he released his right leg so that he could put his right foot on the step he does not explain. It might have been possible for him to have partly raised up, 'reached the grab-iron three or four feet above him as it approached and pulled his body up sufficiently to disengage his right leg. But that is not what he did, He says: “I put my foot on the step and got partly up and grabbed the grab-iron-— I couldn’t say whether I had hold of the grab-iron or not —and my foot slipped off the flange of the step.” He got partly upon the engine by putting Ms foot on the step. There is not a suggestion, or an implication, in his testimony any where that he released his leg by getting hold of any part of the’engine, or anything else, and pulling himself up.

It may be that plaintiff was so confused and disconcerted by the perilous position in which he was suddenly placed, by the unexpected movements of the engine, that he is unable to give a rational account of his movements and of the manner in which his.foot was crushed. It may be that after having been knocked down, in obedience to a dominant impulse, he rolled away from the track, scrambled to his feet and in his nervous haste to climb on the engine, missed his footing. This is all speculation, however. In the absence of any evidence to the contrary, we can not assume that plaintiff was in any other position than that in which he says he was when he attempted to get on the engine. But we do hold that his statement that he was lying clear down flat on the ground with his right leg square under him in such fashion that he could not roll away from the moving train and while in that position he put his right foot on the engine stop, two feet above the surface on which he was lying, got partly up and grabbed the grab-iron, is so in conflict with common experience and observation as to be incredible. In passing on the question of whether there was substantial .evidence to take the case to the jury, we will, therefore, exclude from consideration that portion of plaintiff’s testimony. The only effect that can be accorded it is its bearing on his credibility as a [witness, and that is a matter that was solely for the jury to determine. Looking then to the remainder of his testimony, we find him lying clear down flat on the ground along the track with his right leg so confined under him that he can not roll away, having been knocked down in the manner and under the circumstances heretofore detailed. ' The peril that he apprehends as he lies there is that the tank truck or step will crush or mangle him as they pass over him. We find him an instant later—not struck by the truck or step, but with his right foot on the rail and the car wheels passing over it. We can not say that on this state of the evidence the jury was not warranted in finding that plaintiff’s injury was proximately caused by the negligent . starting of the engine.

V. The further contention is made that the verdict is excessive. According to a long line of cases decided by this court, where, as here, the only permanent injury is the loss of a limb, an award of damages in excess of $10,000 will not be allowed to stand.

Other questions are raised, but they are not deemed of sufficient merit to further extend this opinion' with their discussion.

In accordance with the views herein expressed, the judgment is affirmed on the condition that the plaintiff within ten days, enter as of the original date thereof, a remittitur in the sum of $10,000; otherwise, the judgment is reversed and the cause remanded.

Brown and Small, CC., concur.

PER CURIAM:—The foregoing opinion of Rag-land, C., is adopted as the opinion of the court.

All of the judges concur.