author: GRAVES, C. J.

text:
    ALLEGA WILLIAMS v. EDWARD B. PRYOR et al., Appellants.
    In Banc,
    December 22, 1917.
    1. NEGLIGENCE: Federal Employers’ Liability Act: Issues Upon Demurrer. Since contributory negligence is not under the Federal law a bar to a recovery by an employee injured in the course of his employment while engaged in interstate commerce, a demurrer to the evidence can be sustained only on one of two . theories, namely, (1) that there was no negligence on the part of defendant, or (2) that the plaintiff assumed the risk, and one or the other of these must appear as a matter of law.

      2. ASSUMPTION OF BISK: When Possible. There can be no assumption of risk except in cases in which the relation of .master and servant exists. But that relation may be by either an express or an implied contract.
    3. -: What Bisks: Duty of Master. A servant employed to do a given work assumes the ordinary and usual risks incident to such employment. But, that admitted, it still is the duty of the employer to furnish the employee a reasonably safe place in which to perform his work, and reasonably safe tools with which to perform it. Those duties are non-delegable in the sense that the - master is always responsible for the faithful performance of them.
    4. -: Defective Tool: Question for Jury. If the tool furnished by the master was not, according to plaintiff’s evidence, reasonably safe for the performance of the work assigned by the master to the servant, the question of the master’s negligence is one for the jury.
    5. -: -: Negligence. The furnishing of a tool which is not reasonably safe for the performance by the servant of the work assigned to him by the master, is negligence on the part of the master, and the servant does not assume a risk growing out of the master’s negligence.
    6. -¡ — : Patently Defective Tool: Continuing to Use. If the tool furnished by the master is so patently defective that an ordinarily careful and prudent man would not use it, a use of it by the-servant is negligence, but under the Federal law that negligence, being contributory, does not bar a recovery, nor does the servant assume the risk growing out of the master’s negligence in furnishing such a tool.

      7. -: Common-Law Buie: Use of Glaringly Defective Tool: Contributory Negligence. In cases in which the doctrine of assumed risk can be invoked such assumed risk must he determined by the common-law rule as 'that rule has been announced by the Missouri courts, and it is (1) that the servant never assumes a risk that is the outgrowth of the master’s negligent act, and (2) that the servant cannot recover on the ground of his own negligence, which in Missouri is denominated contributory negligence, and the use of a glaringly defective tool would be such, but under the Federal statute such contributory negligence does not bar recovery, nor does the servant because of such contributory negligence assume the risk occasioned by the master’s negligence.
    8. -: Simple-Tool Doctrine. It is negligence of the master to furnish a tool which is not reasonably safe for use by the servant in the performance of his work, whatever be the character of the tool. In its final analysis the so-called simple-tool doctrine is nothing more than that of contributory negligence, which is no defense under the Federal statute and does not fasten assumption of risk on the servant.
    9. -: More Dangerous of Two Methods. The choosing by the servant of the more dangerous of two methods of performing the work assigned to him, is contributory negligence on his part, and does not defeat his right to recover for injuries which result from the master’s negligence in failing to furnish him a reasonably safe tool for the performance of his work.
    Appeal from Chariton Circuit Court. — Hon. Fred Lamb, Judge.
    Affirmed.

      J. L. Minnis, N. S. Brown and J. A. Collet for appellants.
    The court erred in overruling defendant’s demurrer to the evidence, this because: First: The evidence wholly failed to show that the particular tool with which plaintiff was working was furnished by defendants, but showed on the contrary, that the tool was of plaintiff’s" own selection. Second: Because the evidence showed that the tool in question was so manifestly of the simple tool variety or class, that the master could not be presumed to have any superior knowledge or judgment in relation to the tool than the servant using it, and was therefore under no obligation to make an inspection of the tool before permitting its use. Third: Because the evidence clearly disclosed that whatever defects, if any, the clawbar in question had, they were plainly discernible- to plaintiff upon the slightest inspection, and having selected this tool knowing its condition, or under such circumstances as would make him chargeable with knowledge of its condition, he assumed all the risk incident to its use. Fourth: Plaintiff’s own evidence disclosed that the clawbar used by him was entirely safe for the use required of it, if used in the ordinary and safe manner, and that in using it in the manner in which he did use it, he not only recognized that that was not the safest manner, but he also recognized that under the circumstances he was in danger of experiencing the very accident and injury that befell him, and having voluntarily chosen the unsafe manner of performing the labor, he assumed all the risk incident thereto, and cannot recover. 8 Thompson on Negligence, sec. 4608; 20 Am. & Eng. Ency. Law, pp. 80 and 112; Labatt on Master and Servant, sec. 154; Randell v. Railroad, 109 U. S. 478;>Kohn v. McNulta, 147 U. S. 238; Arman v. Hahn, 111 H. S. 313; Railroad v. Archibald, 170 IT. S. 665; Railroad v. Horton, 233 U. S. 492; Jacobs v. Railway, 241 U. S. 229; Oil Co. v. Brown, 54 L. Ed. 939; Dickenson v. Jenkins, 144 Mo. App. 132; Courier v. Mercantile Co., 136 Mo. App. 517; Beckman v. Brew. Assn., 98 Mo. App. 555; Post v. Railway, 121 Mo. App. 562; Trainer v. Mining Co., 243 Mo. 359; Fugler v. Bothe, 117 Mo. 475; Knorpp v. Wagner, 195 Mo. 637; Holloran v. Iron & Foundry Co., 133 Mo. 470; Mathis v. Stock Yards Co., 185 Mo. 434; Steinhauser v. Spraul, 127 Mo. 541; Harris v. Railroad, 146 Mo. App. 524; Roberts v. Telephone Co., 1G6 Mo. 370; Lowe v. Railroad, 265 Mo. 587; Wachsmith v. Electric Train Co., 118 Mich. 275.

      E. J. West and Roy W- Bucher for respondent.
    (1) The trial court committed no error in modifying defendant’s instruction No. 3. The second paragraph of said instruction was based on the theory that if the jury found that the plaintiff was using the elawbar in a manner which was less safe than some other method then plaintiff could not recover because he assumed the risk of injury which might befall him. That instruction defined contributory negligence and not assumption of risk. Montgomery v. Railroad, 109 Mo. App. 94; Hurst v. Railroad, 163 Mo. 322; Moore v. Railroad, 146 Mo. 582; Harris v. Railroad, 250 Mo. 567; Pish v. Railroad, 263 Mo. 124; Rhea v. Railroad,-171 Mo. App. 179. (2) The mere fact that the servant chooses a dangerous way in which to do a particular thing when it might be done with less hazard in another way does not preclude recovery. Danieís v. Goeke, 191 Mo. App. 11-12; Rhea v. Railroad, 171 Mo. App. 178; Hutchinson v.. Safety Gate Co., 247 Mo. 116. (3) Appellant had not properly stated the doctrine of assumption of risk as the same is defined by the courts of this State. Pish v. Railroad, 263 Mo. 122; Cross v. Railroad, 191 Mo. App. 202. (4) Appellant’s demurrer to the evidence was properly overruled. Blankenship v. Paint & Glass Co., 154 Mo. App. 489.
   GRAVES, C. J.

This case reaches this court by a proper certification of the Kansas City Court of Appeals, it being recited in the certificate of that court that one of the judges of that court deemed their opinion to be in conflict with the law as announced by this court in the case of Fish v. Railway Co., 263 Mo. 106. Judge Johnson of the Court of Appeals fairly outlines the case in this language:

“This is an action for damages for personal injuries plaintiff alleges he sustained in consequence of negligence of defendants, his employers who, at the time, were receivers of the Wabash Railroad Company.

“Plaintiff, a laborer, was employed in the work of tearing down a bridge on- the road near Ottumwa, Iowa, and was attempting to draw a bolt from a bridge cap with a clawbar when the claws slipped from their hold on the bolt, causing plaintiff, who was bearing down on the free end, to lose his balance and fall to the ground, a distance of twelve feet. The petition alleges ‘that said clawbar was caused to slip - on said bolt and the plaintiff was caused to be hurt and injured by reason of the claws on said bar having become battered and worn to such an extent that they would not take.a firm hold on the bolt that was being drawn, and that because of such battered and worn condition of said claws the said clawbar was rendered dangerous and not reasonably safe for the work in which plaintiff was engaged . . . and plaintiff, without any fault or negligence whatever on his part, was unaware of the battered and worn condition of said clawbar, and did not know that the same was unsafe for use in drawing said bolt,’ and the specific negligence averred is that defendants ‘negligently and carelessly failed and neglected to furnish plaintiff a reasonably safe clawbar with which to,work, and negligently furnished him a clawbar with which to draw said bolt that was old and battered and worn as aforesaid and unfit for the purpose for which it was provided and not reasonably safe for the work in which the plaintiff was engaged a:t the time he was injured,’ etc.

“The defenses interposed by the answer are a general denial and pleas of assumed risk and contributory negligence. The jury returned a verdict for plaintiff for $5,000, and after their motions for a new trial and in arrest were overruled, defendants appealed.

“The pertinent facts disclosed by the evidence of plaintiff may be stated as follows:

“Plaintiff, who was twenty-one years old and had been reared on a farm, entered the service of defendants as a common laborer in August,-1915, and worked for them until his injury in November of that year, his work being that of ‘helping build' steel bridges and taking down old ones.’ Shortly before his injury the foreman in charge of the work of tearing down an old bridge, ordered plaintiff to draw a certain drift bolt which was about fifteen inches long and three-fourths of an inch in diameter, from the bridge cap, a timber sixteen feet long and twelve by twelve inches in its other dimensions. First, plaintiff cut out the wood from around the bolt with ail axe, then he struck the bolt sidewise with a maul to loosen it, and then he took up the clawbar, which' was one of the tools provided by defendants and, so far as the evidence discloses, the only clawbar at hand, and proceeded to draw the bolt out of the cap. The claws projected forward from the heel of the clawbar which rested on the cap and served as the fulcrum. On the first application of the power exerted by plaintiff, who stood on the cap and pressed downward on the free end of the bar, the claws pressed upward on the head of the bolt and pulled the bolt out of the wood to the limit of the action of the claws. Then plaintiff raised the free end of the lever, inching the claws down the shank of the bolt and then by twisting or turning the bar in his hands, endeavored to grasp the shank tightly between the claws, so that the next application of power would be exerted at the place where the bolt was being held in that grip. The men called this inching process ‘Arkansawing the bolt,’ and the evidence of plaintiff tends to show that such was the customary, as well as the.most expeditious, method of .pulling bolts, while the evidence of defendants is to the effect that the customary and safer method was to block up under the.heel after each pulling of the bolt, so that the claws at each application of the power would press directly against the bolt head and be held thereby from slipping. Plaintiff states that in ‘Arkansawing the bolt’ he endeavored by turning the bar to obtain a firm hold on the shank, but that the claws had become so rounded and dulled by long usage that they could not be made to grip the shank securely, and slipped from their hold when plaintiff pressed downward on the handle, causing him to lose his balance and fall from the cap to the ground.

“Further plaintiff states that to discover the defect required the inspection of the underside of the tool, and that in obeying the order of the foreman to draw the bolt he did not pause to make such inspection, but proceeded to use the tool without any but a casual inspection of its top surface, which did not reveal the presence of the defect. The railroad on which plaintiff was working was engaged in interstate commerce, and the case was properly tried by both parties on the theory that the cause of action, if any, inured to plaintiff, fell within the purview of the Federal Employers’ Liability Act.”

' The Court of Appeals held that the plaintiff assumed the risk of using a simple tool, where the condition thereof was open and obvious. If further details of the evidence become necessary they can best be given in the course of the opinion.

I. The assignment of errors in this court are: (1) refusal of a demurrer to the testimony at the close of plaintiff’s ease, (2) refusal of such demurrer at the close-of the whole case, (3) refusal to give instruction numbered 3 as asked by defendant and in modifying same and giving it as modified, (4) refusal to give Instruction Number 7 for defendant, and (5) refusal to give Instruction Number 12 for defendant.

An examination of these assignments of error in the light of the pleadings, proof and instructions, demonstrates that the real questions are (1) was the negligence of defendant shown by the proof, and (2) did the plaintiff assume the risk, when he did the act in the manner m which he did it, and with the tool used? Under the Federal law, contributory negligence is not a bar to recovery, but may be considered by the jury in determining the damages. So, that if defendants are right in urging their demurrer to the testimony, it must be upon one or the other grounds mentioned above, i. e. no negligence on the part of the defendants, or plaintiff assumed the risk, and that one or the other of these appears as a matter of law.

II. The subjects of assumption of risk, and contrib-. utory negligence, are often confusedly discussed in the' cases. In Fish v. Railway, 263 Mo. 106, this C(yar^ clarified the atmosphere to the extent of holding that there" could be no assumption of risk, except in cases where the relation of master and servant existed, which relation might be by either an express or an implied contract. The instant case is one which falls within the class of eases in which the doctrine of assumed risk may be invoked. The real question in the case is, whether or not the things charged to the plaintiff herein, by the pleadings and proof, are things properly classed under the subject of assumed risks, or are they mere matters of contributory negligence ?

We start with the rule, that where one employs another to do a given work (thus creating the relationship of master and servaint) the latter (the servant) assumes the ordinary and usual risks incident to such employment. We then advance to another simple and well defined rule, that it is the duty of the employer to furnish to the employee a reasonably safe place within which to perform the work, and reasonably safe tools with' which to perform it. These duties are what we denominate non-delegable duties. They rest upon the master, and if he leaves those duties to be performed by another, he is responsible for the performance. In other words, the master can never shift liability by saying that he had a competent person do these things for him. They are non-delegable duties in the sense that the master is always' responsible for the • faithful performance of them.

In the instant case the master furnished to the plaintiff a clawbar which, according to the evidence of the plaintiff, was not reasonably safe for the performance of the work assigned by the master to the servant. At least the jury could have found from the evidence that the tool as furnished was not reasonably safe for the performance of the work. .The question1 then of the master’s negligence was one for the jury, and the jury has found that the master was negligent. 'The simple-tool doctrine urged by the defendant we discuss later. What we now want to make clear is the fact that there is evidence in this record from which a jury might well find that the master was negligent in furnishing the clawbar used by the plaintiff, unless the simple-tool doctrine changes the situation, and this doctrine cannot change the situation, except upon two theories, i. e. (1) that there is no negligence upon the master in furnishing to the servant a simple tool, which is defective, and (2) that by the use of such defective simple tool, the servant assumed the risk. But as stated we will discuss simple tools later. What we now desire to discuss is the situation of the law, on the theory, that the furnishing of the defective clawbar was negligence upon the part of the defendant, as the jury has found.

It is the unbroken rule in (Missouri, that the servant never assumes the risk, where such risk grows out of the negligence of the master. [Fish v. Railway, 263 Mo. l. c. 125. Charlton v. Railroad, 200 Mo. l. c. 433; Patrum v. Railroad, 259 Mo. l. c. 124; George v. Railroad, 225 Mo. l. c. 407.] These cases and the causes cited therein thoroughly state the rule and reasons therefor. Thus in the Charlton case, it is said: “Assumption of risks rests on contract — negligence rests in tort. [Dale v. Hill-O’Meara Construction Co., 108 Mo. App. l. c. 97.] The servant, when he enters his master’s employ, impliedly agrees with him, for the compensation named, to assume the risk of usual dangers incident to the work. But the servant does not assume the risk of the master’s negligence, for a very good reason, and that is'because' it is a fundamental proposition that it is against public policy for a master to contract against his own negligence. So, too, in the assumption of risks by a servant it is well to consider a certain assumption by the master, and that is, that the master impliedly contracts with the servant that he will exercise ordinary care to protect such servant from injury by providing a reasonably safe place for him to work.. When these two assumptions are considered as proceeding hand in hand, it will be perceived that the risks assumed by the servant are those risks alone which remain after the master has exercised ordinary care.”

To like effect Faris, J., in Patrum v. Railroad, supra, said: “The moment negligence comes in at the door it may well be said that the doctrine of assumption of risk goes out at the window. [Curtis v. McNair, 173 Mo. 270; Brady v. Railroad, 206 Mo. 509; Tinkle v. Railroad, 212 Mo. 445; Huston v. Railroad, 129 Mo. App. 576.] We have here in Missouri, whether logically or illogically we need not here pause to discuss, come to use the term Assumption of risk’ .to express the mere hazards which appertain to a dangerous avocation when unaffected by the negligence of the master. When, however, the servant enters into or remains in the service of the master with actual or constructive knowledge of defects arising from the master’s negligence and without a promise of remedy, we speak of this in our Missouri courts as contributory negligence.”

Now in the instant case, if the furnishing of the worn and battered elawbar, was negligence upon the part of the master, then under the Missouri rule, so long and so firmly fixed, there is no assumption of risk in the use of such tool. If the tool was so patently defective that an ordinarily careful and prudent man would not have used it, then we have the plaintiff doing what an ordinarily careful and prudent man would not have done, having in view his own self-protection, and such use would be negligence upon his part, which negligence contributed to his injury. In other words, we would have negligence upon the part of defendant, and contributory negligence upon the part of the plaintiff. But under the Federal law, this contributory negligence does not bar a recovery, but may be only shown to reduce the damages. If therefore, the furnishing of this elawbar, in its defective condition, was negligence upon the part of the master, there is no assumption of risk in the case, and the most there is for the defendant is the alleged contributory negligence, and the demurrers to the evidence could not be sustained on that ground, under the Federal law.

III. In Fish v. Railway, 263 Mo. 106, we properly held that under the Federal statutes there were two classes of cases: (1) a class of eases where-in the assumption of risk could not be in-voked, and (2) a class of cases wherein the defendant could invoke the doctrine of assumed risk. With this ruling we are fully satisfied, and the case now before us is within the latter class, above named. But in the Fish case, supra, we further held that as to the class of cases wherein the doctrine of assumed risk could be invoked, such assumed risk must be determined by the common law rule, and to this doctrine we now adhere. Not only so, but we say now, in plain terms, what was inferentially said in the Fish case, and that is, by the common law rule, we mean the rule of the common law, as it had been announced by the Missouri courts. That rule is that the servant never assumes a risk where such risk is the out-growth of the master’s negligent act. In Missouri, the use of a glaringly defective tool may show negligence upon the part of* the party so using it, but such party does not assume the risk which was created by the negligent act of the master in furnishing such tool. In such cases we hold that the plaintiff cannot recover on the ground of his own negligence, i. e. his doing a thing which an ordinarily careful and prudent man would not have done, having in view his own safety. In the Fish case, supra, we denominated this contributory negligence, and we still adhere to that rule. The Fish case is not the only Missouri case so to announce, but on the contrary many eases so hold. If assumption of risk grows out of the contractual relation of' master and servant, as our cases hold, then there is no other place to which to give such acts of the servant, than to the field of contributory negligence. The risks he assumes are those he contracted to assume, i. e., those necessarily incident to the work. Not risks which grow out of negligence, whether such negligence comes from the one contracting party or from the other. If the neglect is that of the master, we simply denominate it negligence. If the neglect is that of the servant, and he is suing for the neglect of the master, we denominate it contributory negligence. To illustrate by the case at bar. It was the duty of the master to furnish the servant a reasonably safe elawbár with which to do the work. The failure to furnish that character of a clawbar was negligence upon the part of the master. If the defects were so glaring, and the clawbar so patently defective that an ordinarily prudent servant would not have used it,' then its use under such circumstances was negligence upon the .part of the servant, which negligence under the rule in Missouri would bar him from a recovery. But not so under the Federal statute.

IV. So that we reach this point, in this ease: if we were right in the Fish case, the Court of Appeals is wrong in the opinion certified with the case †0 this court. We are not shaken from our . _T , /i t „ views-in the Fish case. Under the ruling of that case, there is no > assumption of risk in the case at bar, if there was negligence upon the part of the master in furnishing the kind of elawbar that was furnished. The evidence was such as to authorize the submission of the question of the master’s negligence to the jury, and the jury has found the master negligent. The matter of plaintiff’s contributory negligence was submitted to the jury by proper instruction under the Federal act, which permitted the jury to consider the same in reducing damages.

Whatever the rule as to assumption of risk may be in other -jurisdictions, we are satisfied with the Missouri rule. We are as yet not convinced that 'we were wrong in the Fish case when we said that in the class of eases under the Federal statute, wherein assumption of risk could be invoked as a defense, such assumption of risk was that of the common law as interpreted by this court, in cases tried in our court. .As this court interprets the common law, there can be no assumption of a risk occasioned' by the negligence of the master. We find no Federal case discussing the right of this court to apply its common law rule in determining whether or not the defense of assumed risk is in a case. Until the higher court says we cannot apply the common law rule as we understand it to be, and for years have understood it to he, we shall adhere to the rule as announced in the Fish and previous cases, i. e. that the servant never assumes a risk which is the outgrowth of the master’s negligence, and further that if such servant remain in a glaringly unsafe place, or use a glaringly defective tool, negligently furnished by. the master, such servant is guilty of contributory negligence, but has not assumed the risk occasioned by the negligence of the master.

Y. We now come to the simple-toól doctrine urged by the defendants. As indicated above, this so-called doctrine cannot avail the defendants, except upon one of two theories, i. e. (1) that it is not negligence upon the part of the master to furnish a tool not reasonably safe for the performanee of the work, if such is of simple mechanism and not a complicated one, and (2) that the servant assumed the risk of using such tool.

What we have previously said practically disposes of this question. . It is negligence for a master to furnish a tool which is not reasonably safe to be used on the work, and we care not what the character of the tool, in so far as the negligence of the master is concerned. Because the contract of hiring called for a reasonably safe place wherein to work, and reasonably safe tools with which to work. When we say the contract of hiring, we mean such a contract of hiring as we have ioefore us in the present case. If the master 'says, to the servant, I have a certain work to do, and here are the tools you must use, and the servant accepts the employment, we might have a different case, but that is.not this ease, nor do we say we would have a different case, because the contracting against his own negligence might be a factor. However, we had better adhere to the case here.

Going back to the so called simple-tool doctrine, what is there to be found in it? In its last analysis it is nothing more than that of contributory negligence. A servant picks up a hoe, an axe, or a clawbar, and if the defects are open and glaring, and so open and glaring that a reasonably prudent person would not undertake to use them in the work being done, then the use of the tool would not be the exercise of ordinary care upon his part for his oVn protection. This failure to use ordinary care is negligence, and if he sues the master for the master’s neglect in furnishing an unsafe tool, the master may respond and say the tool was a simple device, and any ordinary person could have seen and known the defects thereof, and in using it in that condition you have been guilty of negligence which contributed to your injury, and you cannot recover. To my mind that is all there is in the so-called simple-tool doctrine in states like Missouri, where we have fixed views upon assumed risk. You can show the simple character of the tool, and the obviousnessi of the defects, to show contributory negligence.

choosing . Method?US VI. What we have said practically disposes of another contention made, i. e., that the servant having chosen the more dangerous of two methods of doing work, assumed the risk incident to the method chosen. Here again the courts of this State denominate this act contributory negligence and not assumption of risk. [Montgomery v. Railroad, 109 Mo. App. l. c. 94; Moore v. Railway, 146 Mo. l. c. 582.] .

In the Moore case, supra, Williams, J., quotes with approval the following from Bailey on Personal Injuries Relating to Master and Servant, volume 1, section 1123: “Where a person having a choice of two ways, one of which is perfectly safe and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover.”

And this is sound, in my judgment. If a servant choose the more dangerous of two ways open to him, he is failing to do (for his own protection) that which an ordinarily careful and prudent person would do.' Such failure is negligence on his part, and where such negligence is invoked as a defense by the defendant in a law suit, the law denominates it contributory negligence.

VII. As indicated, the rule announced in the Court of Appeals contravenes the rule in the Fish and other cases from this court. It held that the plain-

tiff was barred because he had assumed the r-g^ we do not agree. Whilst the defendant has made five assignments of error, set forth above, they all raise the questions which we have discussed, and raise none other. In our judgment this case was well tried by the court nisi, and its judgment should be affirmed. It is so ordered. All concur.


source: Caselaw Access Project

author: WALKER, J.

license: Public Domain

text:
    THE STATE ex rel. BUFFUM TELEPHONE COMPANY v. PUBLIC SERVICE COMMISSION, Appellant.
    In Banc,
    December 22, 1917.
    1.PUBLIC UTILITY: Service for Members Alone. A voluntary association of farmers, which constructs telephone lines and owns the ’phones, not operated for hire, but for the personal convenience of the members, with no other expenses than the necessary cost of connecting the lines at the switchboard, in a town in which they center, with the lines of other like associations, is not a public utility; and since its use and operation do not affect the interests of the general public, the Public Service Commission has no power under the statute to compel the making of a physical connection between its lines and those of a public telephone corporation. The regulative authority of the Commission is confined to such companies as “conduct telephonic communications for hire.”
    2. -: -: Service to Non-Subscribers. Nor did the fact that the association charged a flat rate to a few non-members, who constructed their own lines and maintained their own ’phones, and thereupon were entitled to connect with the lines of members and to use the facilities of the association without further charge, convert the association, the use of the lines of which was otherwise confined to members alone, into a public utility; for its constitution and by-laws conferred upon it no such authority as it thus exercised.
    3. -: Power of Supervision: Public Bights. To authorize supervision by the Public Service Commission, the exercise by the utility of its powers must be such as will affect public interest rather than private fights.

      4. EXTENT OP REVIEW: Questions Not Raised Before Commission. A. constitutional question injected into a case for the first time on review in tbe circuit court, namely, that the order of the Public Service Commission requiring the defendant to connect its telephone lines with the lines of a voluntary association, not a public utility, is a taking of property without just compensation and without due process of law, cannot be considered by the court, because not timely raised.
    5. PRIVATE TELEPHONE ASSOCIATION: Connection With Public Utility: Public Necessity. Numbers will not establish a claim of public necessity. That a large number of persons are being served by telephone lines, constructed for their own convenience ’ and confined to their private use, does not entitle them, individually or collectively, on thé ground of public necessity, to an order from the Public Service Commission compelling a public utility in their midst to make a physical connection between their line and its own.
    Appeal fronr Cole Circuit Court. — Eon. J. G. Slate, Judge,
    Affirmed.

      A. Z. Patterson and James D. Lindsay for appellant.
    (1) The enforcement of physical connection and interchange service between carriers, railroad compánies, telegraph companies, telephone companies, or between such a company and customers, under reasonable conditions, through switches, spur tracks, or -connecting wires, is an exercise of the power of regulation, and not an act to be accomplished only through an exercise of the right of eminent domain. In the instant case, the order of the Public' Service Commission requiring the Buffum Telephone Company, at the expense of the Auxvasse Mutual Telephone Company, to construct and maintain a physical connection with the latter company, and to receive and transmit messages or conversations for long distance transmission originating on the lines of the Auxvasse Company, is valid as a reasonable regulation of the business of respondent and its use of its property — is a requirement of service — and is not a “taking” or appropriation of respondent’s property. Sections 2, 16, 86, 87, 90, 93, Public Service Commission Act; Railway v. Michigan Ry. Comm., 231 U. S. 457, 468; Railroad v. Railroad Comm., 236 U. S. 615; Jacobson v. Wisconsin Comm., 179 IT. S. 287; Railroad v. Iowa, 233 U. S. 334; Railroad v. Corporation Comm., 206 U. S. 1; Washington ex rel. v. Fairchild, 224 U. S. 510; Tel. & Tel. Co. v. Hotel Co., 214 Fed. 666; Telephone Co. V. Railroad Comm., 162 Wis. 383'; Telephone Co. v. Railroad Comm., 161 N. W. 240; Telephone Co. v. Telephone Co., 96 Neb. 260; Tel. & Tel. Co. v. State, 38 Okla. 554; State ex rel. v. Tel. & Tel. Co., 147 Pac. 885. The Buffum Telephone Company is a common carrier of spoken messages, and its duties in that regard must be tested by the rules which the courts have laid down as appropriate and necessary, in determining the obligations assumed bv common carriers. Telephone Co. v. Telephone Co., 236*Mo. 114; Telegraph Co. v. Tel. & Tel. Co., 177 Fed. 726; Telegraph Co. v. Tel. & Tel. Co., 61 Vt. 241; State ex rel. v. Telephone Co., 17 Neb. 126. (2) The Auxvasse Mutual Telephone Company is a public utility and is subject to the jurisdiction of the Public Service Commission, because it is engaged “in the conduct of the business of affording telephonic communication for hire.” It does this in collecting tolls from non-members who use any part of its system of lines for telephonic communication, or in collecting five- dollars per annum from all of those subscribers who are non-members. Subdiv. 17, Sec. 2, Public Service Act 1913; Sections 86 and 87 and Subdivision 3 of Section 93, Publ. Serv. Act 1913; Tel. & Tel. Co. v. State, 144 Pac. 1060, 1062; 21 Cye. 437. The Legislature used the.word “hire” designedly as distinguished in meaning from the word “profit.” Carter v. Arnold, 134 Mo. 208. Contemporary history and the words employed in the definition of the term “telephone corporation,” show that the definition cannot be so narrow as to include only corporations operating for profit and with dividends as the object in view. Land & Impr. Co. v. Nansas City, 172 Mlo. 533. (3) It is not the amount but the character of the business done which constitutes a public utility. It need.not be unrestrictedly offered or open'to all of the public. Taxicab Co. v. Kutz, 241 U. S. 252; Public Utilities Comm, ex rel. v. Noble, 113 N. E. 910; Public Utilities Comm, ex rel. v. Telephone Co., 268 111. 411; Public Service Comm. v. Fox, 160 N. Y. Supp. 59; Van Dyke v. Geary, 37 Sup. Ct. Rep. 483; Water, Light &• Power Co. v. Eshleman, 167 Cal. 681; Tel. & Tel. Co. v. Hotel Co., 214 Fed. 666. (4) The Auxvasse Company is subject to the orders and jurisdiction of the Public Service Commission, not only by the evidential facts in the record showing it to be a company “affording telephonic communication for hire,” but also by virtue of its complaint and its express submission of itself and its business to the Commission, for regulation, in those express terms. Tel. & Tel. Co. v. State, 144 Pac. 1060. (5) But the power of the Public Service Commission to require the Buffum Telephone Company to provide instrumentalities and facilities adequate and in all respects just and reasonable with respect to its business of affording long distance telephone service, is plenary, and this power does not depend for its existence or exercise upon the complainant or applicant for the service, being technically and unrestrictedly a public service company. But it is enough that the business afforded and the service attempted by the complainant affects so considerable a fraction of the public that it is public in the same sense in which any other may be called so. Secs. 86 and 87, Public Service Commission Act; Subdivisions 6 and 9 of Section 16, Ibid.; Taxicab Co. v. Kutz, 241 U. S. 252;' Public Service Comm. v. Pox, • 160 N. Y. Supp. 59; Tel. & Tel. Co. v. Hotel Co., 214 Fed. 666; Van Dyke v. Geary, 37 Sup. Ct. Rep. 483; Water, Light & Power Co. v. Eshleman, 167 Cal. 681; Public Utilities Comm, ex rel. v. Telephone Co., 268 111. 411; Ins. Co. v. Lewis, 233 U. S. 389; Ratcliffe v. Stock Yards Co., 86 Pac. 150; Peck v. Tribune Co., 214 U. S. 190. (6) The constitutional issues attempted to be injected into the case through plaintiff’s motion for judgment in the circuit court, came too late. They were not raised in the application for rehearing filed with the Public Service Commission, amd plaintiff cannot urge them now. Such issues must he raised in time, and in due course of orderly procedure. ' Section 110, Public Service Commission Act; State ex rel. v. Atkinson, 192 S. W. 86; Sheets v. Insurance Co., 226 Mo. 612; Hattzler v. Met. St. Ry. Co., 218 Mo. 562.

      Jeffries <& Corum and E. H. Painter for respondent; D. A. Frank, of counsel.
    (1) The commission did not have jurisdiction or authority to order a physical connection between the two telephone lines. Subdiv. 17, sec. 1, and art. 5, Public Service Act, Laws 1913; Tel. Co. v. Light & Tel. Co., 236 Mo. 114; Public Utilities Comm, ex rel. v. Mutual Tel. Assn., 270 111. 183; State ex rel. v. Public Service Comm., 192 S. W. (Mo.)..958; State v. Tie & Timber Co., 181 Mo. 558. (2) The physical connection ordered is unauthorized under the statute, and confiscatory, because: (a) No public convenience or necessity will be subserved thereby. Subdiv. 3, sec. 93, Public Service Act, Laws 1913; Atchison Railroad v. Public Serv. Comm., 192 S. W. (Mjo.) 460; Tel. Co. v. Tel. Co., 37 Ga. Com. Leaflet, 143; State of Washington ex rel. v. Fairchild, 224 U. S. 510; People ex rel. v. Tel. Co., 58 N. Y. Supp. 221; Mo. Pac. Ry. Co. v. Nebraska1, 164' U. S. 403; In re Petition of Phil., M. & S. Railroad, 203 Pa. 354. (b) The purpose is “primarily to secure the transmission of local messages or conversations between points within the same city or town.” Subdiv. 3, sec. 93, Public Service Act, Laws 1913; Tel. & Tel. Co. v. Eshelman, 137 Pac. 1119. (3) The physical connection prayed for would operate as the taking of the property of the Buffum Company without a judicial determination that the taking is for a public use, and without due process of law, in violation of the provisions of Fourteenth Amendment to Constitution of the United States, and Sections 10, 20 and 30 of Article 2 and Section 4 of Article 12 of Constitution of Missouri. State ex rel. v. Publ. Serv. Comm., 194 S. W. 287; Tel. & Tel. Co. v. Railroad, ■ 202 Mo. 656; Pumpelly v. Greenbay Co., 13 Wall. 166; State ex rel. v. Associated Press, 159 Mo. 410; Tel. Co. v. Light & Tel. Co., 236 Mo. 114; Tel. & Tel. Co. v. Eslielman, 137 Pac. 1119; Railway Co. v. Nebraska, 164 U. S. 403; Cape Girardeau v. Houck, 129 Mo. 607;-Shoemaker v. United States, 147 U. S. 282. (4) The Public Service Commission is not a judicial body, and has no authority to pass upon constitutional questions, and no legislative enactment can give it such authority. Railroad v. Publ. Serv. Com., 192 S. W. 460; State ex rel. v. Puhl. Serv. Com., 192 S. W. 958; State ex rel. v. Locks, 266 Mo. 314; State ex rel. v. Andrae, 216 (Mo. 617; Railroad v. Coal Co., 162 Mo. 288; Aldridge v. Speers, 101 Mo. 460; Kansas City v. Baird, 98 Mo. 215.
   WALKER, J.

This is an appeal by the Public Service Commission from a judgment of the circuit court of Cole County, setting aside an order of the Commission, which required that a physical connection be made at the town of Auxvasse in Callaway County between the Auxvasse Mutual Telephone Company and the Buffum Telephone Company.

The proceedings before the Commission were upon the complaint of the Auxvasse Company asking that the Buffum Company be required to receive and transmit long distance messages over its lines from the members and 'subscribers of the Auxvasse Company, that they might thereby have long distance connection over the lines of the Buffum Company.

The Auxvasse Company is not incorporated, but is a mutual telephone company formed by the union at the town of Auxvasse of various neighborhood lines extending into the town and united in a local exchange. It was organized in 1911, to afford cheap telephone service to its shareholders .and subscribers. It consists of about one hundred and forty members owning twelve' or more lines running into and connected at a central office and switchboard in the town of Auxvasse. The members on the various lines composing the system, furnish and own their respective lines and instruments and keep the same in repair, and the members on each line maintain an organization of their own. The union of the various lines under a constitution and by-laws constitutes the central organization known as the Auxvasse Mutual Telephone Company. The organization owns the poles, wires and equipment in the town of Auxvasse, and the central office and switchboard whereby all the various lines are united and a local exchange maintained. The maintenance of the central office, and of the upkeep of the property belonging thereto, is borne by receipts for service rendered to certain subscribers at flat rates, who are non-members, and from toll charges received from non-members talking from ’phones on the lines of the company to a person on the line of another mutual local company with' which the Auxvasse Company maintains free exchange service arrangements.

Any deficit is made up by assessment upon the members. There are eight subscribers not members who pay a flat rate or fee of five dollars each per annum for service on the exchange and for communications over the various local lines of the company.

Any white person may talk free from the ’phone of a member to a person at a ’phone on any of the lines of the company, and may talk with a person on the line of any of the other'like mutual local companies with which the Auxvasse Company has exchange service arrangements upon payment of a toll charge of ten cents.

The members and subscribers on the various lines receive free service over- the lines of the company and over the lines of other like mutual companies with which, exchange service arrangements have been made. There are about twenty-five of the latter.

The members and subscribers of the-Auxvasse Company also have service over a mutual line owned by the company, to Mexico, Missouri, but do not have general long distance service. The service of the members and subscribers is confined to the lines of the company, the connecting line owned by the members to Mexico, and the lines of other like mutual companies with which free service arrangements have been established.

The Buffum Company is an incorporated company, and has a local exchange in the town of Auxvasse, and through its own lines, and connecting lines of other companies with which it is affiliated, has long distance service over the country in general. The central offices of the Buffum Company, and of the Auxvasse Company, are located in the same block near each other.

This action is prompted by a desire of the members of the Auxvasse Company to have from their own ’phones long distance connection through the Buffum Exchange with the various lines and points reached by the Buffum Company. Connection with Fulton, the county seat of Callaway County, is especially desired.'

The Commission found that the cost of the physical connection between the two exchanges would not exceed $25; and that the connection desired was not for an interchange of messages between the local exchanges of the two companies, but that messages transmitted by the subscribers of the Auxvasse Company over its lines should be received and transmitted by the Buffum Company over its lines. The Commission further found that the matter was within the provisions of the Public Service Act; that the physical connection desired could reasonably be made and that there would thereby be formed a continuous line of communication between the two companies for the transfer of messages or conversations by persons entitled to use the lines of the Auxvasse Company; that public convenience and necessity would thereby be sub-served; whereupon the Commission ordered the connection to be made and that the service asked be furnished by the Buffum Company.

The Commission also found that irrespective of whether the property of the Auxvasse Company was impressed with a public use or not, the nature of its business and the number of persons served by it were such as to create a necessity for the physical connection demanded, and therefore the making of same and the rendering of the service was a duty which oo-uld lawfully be required of the Buffum Company.

It was ordered that the expense of making the connection he borne by the Auxvasse Company, and that said company, or its subscribers, or any person using its line for the purpose of long distance connection with the lines of the Buffum Company, pay to the latter company for such service, the full amount of the tolls and charges of the Buffum Company therefor, in accordance with its schedule filed with the Commission.

The Buffum Company filed its application for a rehearing, but failed to allege as grounds for same the violations by the Commission through its order of provisions of the Constitution of Missouri and of the United States, as subsequently set forth in its petition for review. Upon the overruling of the application for a rehearing, the Buffum Company filed its petition for a review in the Cole County Circuit Court of the action of the Commission, setting up the constitutional questions above noted. In the circuit court the respondent herein asked that a jury be called and that it be permitted to introduce additional testimony. These requests were refused.

Respondent then filed its motion for a judgment reversing the order of the Commission, and among other things set up that the order was made without due process of law, and was a taking of respondent’s property without just compensation, and was a violation of Sections 10, 20, 21 and 30 of Article 2 of the Constitution of Missouri, and of Section 1 of the Fourteenth Amendment of the Constitution of the United States, and that the alleged taking' of its property was an unauthorized exercise of the right of eminent domain.

The appellant, Public Service Commission, filed its motion to strike out respondent’s motion for a judgment, for the reason that same was based upon grounds not urged or relied upon by respondent in its motion for rehearing, and was a violation of the method of procedure provided for by the Public Service Act, under the law of its creation, which motion was overruled. The court thereupon sustained respondent’s motion, and entered judgment annulling and .setting aside the order of the Commission.

The judgment of the circuit court, sustaining the respondent’s motion, involves a finding that, upon the record, the Auxvasse Company was not a public utility operating for hire, and therefore not subject to the jurisdiction of the Commission; that public convenience and necessity would not be subserved by the making of the connection, and that.no authority existed for the order, and that enforcement of same constituted a taking of respondent’s property in the sense and manner forbidden by the Constitution.

A synopsis of the relevant sections of the Public Service Act (Laws 1913, pp. 556-651) will assist in determining the matter at issue. By a telephone corporation as the term is employed in the act is meant “every corporation, company, association, joint stock company or association, partnership and person, . . . owning, operating, controlling or managing any telephone line or part of telephone line used in the conduct of the business of affording telephonic communication for hire.” [Sub-div. 17, sec. 2.]

The term telephone line is defined to include every sort of property, “used, operated, controlled or owned by any telephone corporation to facilitate the business of affording telephonic communication.” [Sub-div. 18, sec. 2.]

The jurisdiction, supervision, powers and duties of the Commission are declared to extend: “to all telephone lines, as above defined. . . . and to every telephone company, ... so far as said telephone . . . lines are and lie, and so far as said telephone companies . . . conduct such line or lines, respectively, within this State.” [Sub-div. 6, sec. 16.]

The subjection of telephone corporations to the supervision of the Commission in respect of facilities and service it shall afford, is stated thus: ‘ ‘ Every . . . telephone corporation shall furnish and provide with respect to its business such instrumentalities and facilities as shall be adequate and in all respects just and reasonable.” [Sec. 87, Sub-div. 1.]

The duty of each telephone corporation to transmit messages is thus prescribed: “Every . . . telephone corporation operating in this State shall receive, transmit and deliver, without discrimination -or delay, the conversations and messages of every other . . . telephone corporation with whose 'line a physical connection may have been-made.” [Sub-div. 5, sec. 87.]

The provision for requiring physical connections between lines of ■ telephone companies, is as follows: “Whenever the commission . . . shall find that a physical connection can reasonably be made between the lines of two or more telephone corporations . . . whose lines can be made to form a continuous line of communication by the construction and maintenance of suitable connections for the transfer of . . . conversations, and that public convenience and necessity will'be subserved thereby, or shall find that two or more . . . telephone corporations have failed to establish joint rates, tolls or charges for service by or over their said lines, and that joint rates, tolls, or charges ought to be established, the commission may, by its order, require that such connection be made,' except where the purpose' of such connection is primarily to secure the transmission of local ... conversations between points within the same city or town, and ¿he conversation be transmitted . . over such connection under such rules and regulations as the commission may establish, and. prescribe through lines and joint rates, tolls and charges to be made, and to be used, observed and in force in the future. If such . . . telephone corporations do not agree upon the division between them of the cost of such physical connection or connections or the division of the joint rates, tolls or charges established by the commission' over such through lines, the commission shall have authority, after further hearing, to establish such division by supplemental order.” [Sub-div. 3, sec. 93.]

The powers of the Commission, in requiring improvements, changes in or additions to telephone facilities are thus further amplified and emphasized: “Whenever the commission shall, be of the opinion . . . that repairs or improvements to or changes in any . . . telephone line ought reasonably to be made, or that any additions should reasonably be made thereto, in order to promote the convenience of the public or employees, or in order to secure adequate service or facilities for ..... telephonic communications, the commission shall make and serve an order, directing that such repairs, improvements changes or additions be made within a reasonable time and in a manner to be specified therein, and every . . . telephone corporation is hereby required and directed to make all repairs, improvements, changes and additions ' required of it by any order of the commission served upon it.” [Sec. 95.]

All of these provisions are to be liberally construed as required by the act, towit: “The provisions of this act shall be liberally construed with a view to the public welfare, efficient facilities and substantial justice between patrons and public utilities.” [Sec. 127.]

I. If the companies here involved are public utilities within the meaning of the Public Service Act and a physical connection between them will add to their efficiency as such, then the judgment of -¿he circuit court should be reversed and the orqer 0£ -¿he Commission affirmed, otherwise not. If it were not conceded by the Buffum Company that it is a public utility and as such subject to the supervision of the Commission, the nature of its organization and the character of its activities would justify no other conclusion. It remains, therefore, to be determined whether the Auxvasse Company is subject to a like classification. To render it so, it is not necessary that it be incorporated. Under the inclusive provisions of subdivision 17 of section 2, supra, any association, joint stock company, partnership or person, dependent primarily upon the character of the telephone business they conduct, may be so classified.

The Auxvasse Company is a voluntary association. The right to the use of the facilities it affords is limited to white persons who are the owners of certificates of shares therein, for which they are required to pay a fixed sum. In addition an assessment is made upon such shareholders of $1.50 each per quarter to maintain and operate a central office or switchboard. Maintenance charges required of each shareholder may bo fixed quarterly. Shareholders are not required to pay more than is actually necessary for the upkeep and operating expenses for the quarter ensuing the fixing of same. Non-subscribers are not charged for talking from any telephone on the Auxvasse switchboard to any other telephone on the same switchboard; but when talking from a telephone on the Auxvasse switchboard to one on a connecting switchboard they are required to pay a fee of ten cents to the owner of the telephone where the call is made. Fees thus collected are required to be paid into the company’s treasury during the quarter when they were collected. This constitutes the extent of the business and income of the Auxvasse Company, except five dollars per year paid by each of eight flat rate subscribers who are thus entitled to the facilities afforded without further charge. An abstract of the testimony of a number of the .shareholders of this company given at the hearing before the Commission will give a definite idea as to the character of the business of the company from which its nature and purpose may be determined. These are literal excerpts from different witnesses’ testimony in response to inquiries propounded to them on the stand:

“To maintain and operate the central office each party contributes $1.50 per quarter.” — E. W. Martin.
“The lines are kept up by the membersy who own them. This keeping up of the lines applies to residents in the town of Auxvasse and the surrounding country.” ■ — S. W. Turner. .
“It was never the intention of the company to go into the telephone business for profit. No, I don’t think they calculated on more than enough to make expenses. It was not the intention to go into what is known as a- commercial business. The lines were built for convenience. .That’s what a telephone is for.” — J. F. Buckner.
“The company is not in the telephone business to make moiiey out of it. It was simply for the accommodation of the shareholders. The Mexico toll line is kept up out of the treasury of the company. I use it three or four times a day, I reckon, but I pay no toll charges for this use. The toll line is used a whole lot. Country people when they come in use it more than we do in town. We keep it up for the benefit of those who want to use it.” — W. F. Woodson.
“On. the Auxvasse line each individual owns the box he uses, and the association owns the telephone line reaching to the switchboard. The association does not build lines to anybody. It is simply a collection, of individuals divided further into lines and each line is a separate organization in that it owns its own line.■The Auxvasse Company is not a corporation; it is simply a voluntary association composed of individuals. Its .purpose is to provide telephone service to its stockholders at actual cost. No service is furnished in town to anybody except stockholders.” — S. M. Turner.

The constitution and by-laws and the oral testimony all point to the conclusion that the Auxvasse Company is primarily a private organization not operated for hire. Operation for hire is a prerequisite to supervision by the Commission. The reason is plain. The Commission was created, as.is evident from the entire statute defining its powers, not to interfere with individual action except where same assumes a public nature, but to provide regulations and give plenary power as defined by the statute to the Commission to control such utilities as from their nature and operations may affect the interests of the general public. All such organizations are commercial in their nature in ’that they are not conducted for favors, but for fees. Recognizing this fact, the framers of the. Public Service Acf made this a condition precedent to Commission control.. That a fee may be exacted from non-subscribers for talking from a telephone on the company’s switchboard to one on a connecting line does not militate against the correctness of the conclusion that this company does not afford telephonic communications for. hire. If thus conducted, the right of non-subscribers to demand service would be absolute upon the tender of the fee. Such a right cannot exist, however, because the telephones are individually owned by those in whose premises they are located and no limitation as to such ownership having been made by the company, if such' could be made under the circumstances, the right of use to non-subscribers is at best permissive and being so does not authorize the conclusion that the company is conducted for hire. The fee thus authorized to be charged is but an incident in the general conduct of the business of the company, and is not indicative of its character, which is to serve those who sustain it and not the general public. Nor is the claim that the eight subscribers, who in the absence of any" authority therefor in the company’s constitution and by-laws, are permitted upon the payment of a flat rate, free from assessments, to enjoy its facilities, añ argument in favor of the contention that the company is conducting its business for hire. Each of these subscribers owns the ’phone used by him; except therefore for the difference between the payments made by them and others they sustain no different relation to the company. If their relation be construed to give color to the contention that these transactions are of a commercial nature and hence the company is conducting its business for hire, it will be sufficient to say that the constitution and by-laws based thereon confer no such authority upon the company as is thus exercised. The elementary axiom is therefore applicable that the company cannot enlarge its character by exceeding its powers.

The settlement of a controverted question is often rendered easier by a resort to elementáis. To that end, what is meant by such companies as “conduct telephonic communications for hire?” Simply those which engage in business as a commercial transaction, or for profit. Summarizing what we have heretofore said, is this company of that class? It lets nothing; it hires nothing; but for the maintenance of its own property, and for that alone, it exacts a like sum quarterly from all of its members. The accessories, to-wit, the telephone boxes necessary to render the lines available for the transmission of conversations, do not belong' to the company, but to the individual members. Hence, the property owned .by the company is but' inconsiderable and there is in existence no such organization as is contemplated by the statute.

The Public Service Act is further illuminative of the character of telephone .companies subject to its provisions, in defining the requirements that may be made of them: The Commission may require them to furnish and provide such instrumentalities as. shall be adequate in all respects for the transacting of their business (Sec. 87); to transmit and deliver without discrimination or delay conversations sent over other lines with which they have physical connection (Sub-div. 5, See. 87); to make physical connections with other like companies (Sub-div. 3, Sec. 93); to order' repairs, improvements and changes in. companies for the betterment of the service (See. 95). In addition they may be required to file schedules of their rates of charges with, the Commission and subject themselves," to its supervision by complying with its rules and regulations for the operation of telephone companies. There is no pretense .that in any of these particulars this company has complied with these statutes. On the contrary, it is not contended that ■ it could be required so to do. Unless there is other .evidence than is disclosed by the record, we are inclined to the opinion that it could not be so required. Rulings upon kindred questions in other jurisdictions are but a little more than persuasive in the determination of the matter here at issue on account of differences in the statutes construed. Rightly' reasoned this well marked line runs through them all that to authorize supervision the character of the utility must be of such a nature that the exercise of its powers will affect public rather than private rights. Any other classification would destroy the ruling purpose underlying the creation of public service commissions, and necessarily, sooner or later, run afoul of constitutional provisions, the violation of which would be inimical to individual liberty of action.

II. The same facts adduced to show that the Auxvasse Company is not a public utility will sustain the conclusion that its connection with the Buffum Company is -not such a matter of public necessity and convenience as to authorize the issuance of an or(^er At regard thereto. Recapitulated these are: the' nature of its business, existing as it does not for public use but private convenience; its requiring no pay for profit but fees only for the purpose of existence. Need arguments be piled up like Pelion on Ossa to establish the fact that facilities added by the Commission’s order to an association of this type, will enable it to pass beyond its own tether and add even incidentally to the convenience of others than its own membership? We think not.

III. The constitutional question injected into this controversy for the first time in the petition for review was not timely. How, without a contradiction in terms, can a matter be reviewed which has not been viewed? The purpose of the petition filed in the circuit court, in cases of this character, would be defeated if new issues were permitted to be incorporated therein. Forms, of procedure are for the purpose of facilitating business whether it be of a court or a commission; and there is no more reason why, when required by law, they should not be observed in one case than in the other. By the express language of Section 110 of the Public Service Act (Laws 1913, p. 641) it is provided that “no corporation or person or public utility shall in any court urge or rely on any ground not set forth in said application,” referring to that of rehearing. We ruled in State ex rel. v. Atkinson, 269 Mo. 634, that the observance of this rule was obligatory. There is no reason for a variance from this conclusion. Neither within the letter nor spirit of the Public Service Act is the character of the Auxvasse Company such as to render it subject to the Commission and hence the latter is not authorized to comply with the demand herein made.

IV. The contention is vaguely made by appellant that the individual members of this company have, collectively, the right to demand the connection here under consideration. This contention is evidently based upon the assumption that numbers a|one wpi establish the claim of public necessity. This is not true. Their mere numbers give them no more rights in .the premises than a single individual would have under like circumstances. If A should demand that his private ’phone be connected with the Buffum Company, we may look in vain for authority in reason or the law for the exercise of such power by the Commission as. will effect a compliance with this request. Granted to A, the right must, as a necessary consequence, be conceded to every other individual owning a private telephone line. The result would be the improper invasion of the rights granted by law to the Buffum Company or, in other words, the taking of its property without due process of law. A, therefore, is entitled to the same service as others but not more, and he will only be heard to complain when such service is denied. This subject was discussed incidentally with much clearness in Home Tel. Co. v. Sarcoxie L. & Tel. Co., 236 Mo. l. c. 133, in which the conclusion we have indicated was reached.

There is, in our opinion, no sufficient ground for the order of the Commission requiring a connection to be made between the Buffum and the Auxvasse companies, and the judgment of the circuit court is therefore affirmed. It is so ordered.

All concur, except Blatir, Jwho dissents.


author: BOND, J. BLAIR, J.

text:
    THE STATE ex rel. ST. JOSEPH RAILWAY, LIGHT & POWER COMPANY v. PUBLIC SERVICE COMMISSION et al., Appellants.
    In Banc,
    December 22, 1917.
    1. PUBLIC SERVICE COMMISSION: Alteration of Grade Crossings: Delegation of Legislative Power. It was entirely competent for the Legislature to delegate to the Public Service Commission composed of trained experts exclusive power to require the installation, alteration- or removal of the crossings of highways by railroads and street railways, and a separation of grades at such crossings, and to prescribe the terms upon which . such separations are to be made and the proportions in which the expense shall be divided among the railroad and street railway corporations affected, or between them and the State, county or municipality or other public authority in interest, as it has done.
    2. -: -: -: Modifications of Common Law. The statute giving to the Public Service Commission “exclusive power” to charge the costs and expenses of the elimination of a street grade-crossing and the restoration of the highway against the street railway or steam railroads affected, or to apportion them among other parties interested, and making it its duty to apportion such costs among such corporations and “the Slate, county, municipality or other public auhtority,” is but a modification by positive law of the common law, .by expanding the principles of the common law so as to fit the conditions arising in social and industrial evolution and to apply them to a fuller and more enlightened justice than was afforded" under the narrower enunciations of that law at a time when there were fewer diversities of interest to be affected by the removal of railroad street crossings.
    3. -: -: Reasonable Apportionment of Costs: According to Trackage. Where the Public Service Commission found the total cost of the removal of dangerous street-level crossings and the restoration of the highways, and subtracted therefrom the estimated consequential damages to private property and apportioned that deduction to the city, and of the balance of $238,000 apportioned $203,431 to the steam railroads and $34,569 to the street railway, using the “trackage basis” plan in making the allotment, principally but not solely, but taking into consideration certain other elements of constructive cost and benefit of the general improvement, and its finding is sustained by the clear preponderance of the relevant testimony as to the proper method of making the apportionments, they will not be held to ' e unreasonable or unjust, although the street railway company contended throughout that it should be required to pay only the estimated cost of the work to be done within its track zone, which would be materially less than its allotment.
    4. -:• Reasonableness of Order: Determined Upon Equitable Principles. The reasonableness and justice of an order of the Public Service Commission will be determined by the court upon a review of all the evidence as in a trial of a suit in equity.

      Held, by BLAIR, J., dissenting, with whom WILLIAMS, S., concurs, that, for the reasons stated’in State ex rel. Wabash R. Co. v. Publ. Serv. Com., 271 Mo. 155, the court in cases like this does not weigh the evidence as in suits in equity.
    Appeal from Cole Circuit Court. — Hon. J. G. Slate, Judge.
    BeVERSED AND REMANDED.

      Alex. Z. Patterson and James D. Lindsay for appellants.
    (1) Section 50 of the' Public Service Commission Law (Laws 1913, p. 589) provides that the expense of grade crossing elimination shall be by the Public Service Commission “divided between the railroad- or street railroad corporations affected, or between such corporations and.the State, county, municipality or other public authority in interest.” Acting under the authority of this statute, the Public Service Commission lawfully apportioned a reasonable part of thd expense of the grade-crossing improvements to the Street Bailway Company, and the circuit court should have affirmed such order of apportionment. 33 Cyc. 290; Milwaukee v. Bailroad,.9 Wis. B. C. B. 93, 1915 B. P. U. B. 155; Polk v. Bailroad Comm., 154 Wis. 523; Woodruff v. Catlin, 54 Conn. 277; Bailroad' v. Bristol, 155 U. S. 556;' Tobacco Co. v. St. Louis, 247 Mo. 374. (2) The evidence before the Public Service Commission, and before the circuit court upon review, conclusively shows that the apportionment of $34,000 to the Street Bailway Company of the total cost of the improvement, $443,591, was a fair and just apportionment, and the circuit court’s judgment herein is plainly, flagrantly and indisputably . contrary to the evidence. (3) The subway plan of improvement, as approved by the Public Service Commission, was accepted by the Street Railway Com-pany by its written statement of acceptance filed with the Public Service Commission, and the circuit court committed gross error in hearing and considering the Street Railway Company’s objection to this plan. (4) In making the apportionment order herein, the Public Service Commission considered the “trackage basis” proposed by the railroads, and also a division of expenses based upon the estimated cost of the street railway track changes, to which was added the saving resulting to the Street Railway Company on account of the removal of crossings. The latter basis of apportionment did not take into consideration expense of raising steam railroad tracks at Fourth and Monterey streets, and it assigned $569 more to the Street Railway Company than the “trackage basis.” (5) The Street Railway Company’s contention that the apportionment order of the Commission unjustly required it to pay a part of the cost of changing steam railroad tracks is without merit. The “trackage basis” of apportionment, used in the conference between the parties, lumped together all the costs of changing and reconstructing both steam and'street railway tracks, constructing the subway, and repaving the surface of Sixth Street.

      M. G. Roberts and E. J. Nelson for St. Joseph Union Depot Company as Amicxis Curiae:

      Joseph T. Davis for respondent.
    (1) The State has power to cause steam railroads to remove tracks from streets and crossings at the cost amd expense of the railroads. Tobacco Co. v. St. Louis, 247 Mo. 374. (2) Apportionment of costs and' expenses upon trackage basis is wrong, and inequitable. Milwaukee v. Railroad, 9 Wis. R.. C. R. 193; Milwaukee v. Railroad, 15 Wis. R. C. R. 762; Re D. L. & W. Railroad, P. U. R. 1915 F, p. 180. (3) Respondent should not be charged with taking care of cost of changing property of other public service corporations. Every public utility must take care of its own mains and poles, etc. Re Long Island Railroad Co., P. U. R, 1917 F, p. 44.
   BOND, J.

I. In 1914 the mayor of the city of St. Joseph filed four complaints to the Public Service Commission against various railroad companies and the St. Joseph Street Railway Company, looking to the removal of dangerous street-level crossings. From the order of the Commission apportioning the cost of grade-crossing eliminations to the various companies,' an appeal was taken to the circuit court of Cole County by the Street Railway Company. The order was reversed and the cause remanded and from that judgment the Public Service Commission has perfected an appeal to this court.

The plan finally adopted by the Commission for the elimination of the various dangerous grade crossings was agreed to and accepted by all of the railroad companies, and the controversy here is over the amount apportioned to be paid by the Street Railway Company as its share of the total cost.

The Public Service Commission found the total cost of the improvement and subtracted therefrom the estimated consequential damages to private property and apportioned it to be paid by the city. It then allotted the balance to be paid by the railroad companies, which then undertook to meet at Chicago and agree as to the proper apportionments inter sese. As á result of that meeting one-seventh of $238,000, or $34,000, was allotted to be paid by the Street Railway Company and the remainder of the Cost of the improvement was to be borne by the steam railroad companies.

The Street Railway Company being dissatisfied with this charge against it, filed a motion before the Public Service Commission to re-apportion the cost of the improvement as between it and the other railroad companies. Upon the hearing of that motion it was shown by the testimony of various engineers that the methods usually employed to reach' an adjustment of cost in such cases are what are termed the “trackage basis” and the “right of way basis;” that in this instance it was found impracticable to use the “right of way basis,” and that the “trackage basis” (by which the estimate of $34,000 was made at the Chicago conference) was fair and reasonable. At this hearing it was further shown that the Street Railway Company would receive certain benefits from the removal of specified grade crossings equal to that accruing to any one of the steam railroads; but that the steam railroads, in addition to bearing their proportionate part of the cost of subways and track raising, would have to bear also the further expense- of installing an interlocking plant and acquiring considerable right of way.

On the other hand the Street Railway Company insisted that it should be required to pay only $12,500, the estimated cost of the work to be done within the Street Railway Company’s track zone.

In estimating a fair apportionment of the amount to be paid by the Street Railway Company, the Public Service Commission then took into consideration certain other elements of constructive cost’ and benefit of the general improvement and did not base its conclusion solely upon the “trackage basis” by which the cost was apportioned by the conferring railroads at their Chicago conference. In following this plan the Commission took the evidence of its own engineers and experts, as well as the testimony of persons present and taking part in the Chicago conference, and as a result estimated the amount properly chargeable to the Street Railway Company at $46,569, from which sum it deducted $12,000 to cover the benefits that would accrue to the steam railroads by doing away with the expense of crossing watchmen, thus leaving the amount allotted to the Street Railway Company $34,569, or $569 more than the estimate under the “trackage basis,” of which the Street Railway Company was complaining in its motion.

II. In the performance of its duties the Public Service Commission derives its powers to act from the terms and intendment of the legislative enactments which' created that body. [Laws 1913, p. 556.] Section 50 of that law invests the Public Service Commission with “exclusive power” as to ^ installation, alteration or removal of the crossings ■ of highways by railroads and street railroads, and “to require, where, in its judgment, it would be practicable, a separation of grades at any such crossing heretofore or hereafter established, and to prescribe the terms upon which such separation shall 'be made and the proportions in which the expense of the alteration or abolition of such crossings or the separation of such grades shall be divided between the railroad or street railroad corporations affected or between such corporations and the State, ■ county, municipality or other public authority in interest.” [Laws 1913, p. 589, sec. 50.] It was entirely competent for the Legislature to delegate these functions to a trained body of experts, since they do not involve the exercise of the exclusive .power of lawmaking which a Legislature cannot part with. [Public Serv. Comm. v. Union Pac. Ry. Co., 271 Mo. 258, par. 2.]

It cannot be doubted prior to this statute that full power inhered in the State and its auxiliaries in government, such as municipalities, to require separation of the grades at crossings and to impose the entire expense thereof upon an occupying railroad, upon the theory that the permission to cross a highway given to a railroad, is upon the basic condition that it shall be restored, upon the cessation of such occupancy, either by the act of the railroad or in conformity with directions emanating from the State in the exercise of its sovereign powers of police, so as to be safe and convenient for use by the public. [Am. Tob. Co. v. St. Louis, 247 Mo. l. c. 433 et seq., and cases cited.]

And it cannot be doubted that independently of the provisions of the subsequent, acts of the Legislature quoted above, the costs and expenses of the elimination of grades and the restoration of the highway might have been imposed wholly upon the railroads under a valid ordinance of the city of St. Joseph. But the further contention of the learned counsel for respondent, that the Public Service Commission was not authorized under the section of the statutes upon which its action in this matter'is predicated, to charge such proportion of the expense to the Street Railway Company, loses sight of the plain language and intent of the statute giving the Public Service Commission “exclusive poiver’’ to act in such matters and vesting it with complete authority to make an allotment of the expense among other parties in interest than the railroads, and' overlooks the further fact that the statute makes it the duty of the Public Service Commission to apportion the expense of crossing eliminations “between state, county, municipal or other public authority in interest.” These provisions are modifications of the common by the positive law, by expanding its principles so as to fit the conditions arising in social and industrial progress and to apply to them a fuller and more enlightened justice than was afforded under the narrower view of the common law enunciated at a time when there were fewer diversities of interest to be affected by removal of railroad crossings. In order to be a perfect scheme of social justice, the law must grow and expand to meet the diversified interests which increase as society advances.

We can see no reason why such a statutory modification and reformation of the common law should be subject to any constitutional or legal attack. It is the duty of an intelligent law-making body, in the exercise of its constitutional power, to alter, modify or abolish any rule of the common law which has become obsolete or unequal to the demands of social advancement, and to substitute by statute more refined rules of justice than were afforded by the cruder customs of early stages of society.

Our conclusion is that there is no merit in the contention that the Public Service Commission did not have plenary power to apportion among all the parties in interest, including the street railway company as well as the city and the steam railroads, the cost and expense of the general improvements for the safeguarding of the public by its order eliminating the grade crossings in the city of St. Joseph.

III. The only question left is the reasonableness and justice of the apportionment made by the Public Service Commission as far as it involved the charge of $34,569 against the com- . . . . , mi i i plaining street railway. The learned counsel for respondent insists correctly that this should be determined after a review of the evidence, all of which- is before us, as in the trial of suit's in equity. [Railroad v. Pub. Serv. Com., 266 Mo. l. c. 341; s. c. In Banc, Unanimous Per Curiam on Rehearing, l. c. 346; Lusk v. Atkinson, 268 Mo. l. c 117, 118; State ex rel. v. Pub. Serv. Com., (Sep. Concurring Opinions of Bond, Graves and Woodson, JJ.), 271 Mo. 155 (l. c. 161, 165, 167).] It is further contended that when this is done the street railroad company should not be charged with a greater sum than fifteen thousand dollars, and in fact, on the last page of his brief, the learned counsel for respondent insists that the judgment of the circuit court should be affirmed and the cause remanded to the Commission “with directions to the Public Service Commission to make an apportionment on an equitable basis by apportioning to the street railway company . . . the expense,” etc., not to exceed $15,000. It is apparent, therefore, that the final contention of the respondent street railway company is not that no part of the expense necessarily incident to .the general improvements, should be apportioned to it, but only that the Public Service Commission made an excessive apportionment. We are not prepared to com cur in that view. After a careful and painstaking' review of the relevant testimony in the record before us, we have been unable to reach the conclusion that the finding of the Public Service Commission is not sustained by the clear preponderance of the testimony as to the proper method of making such an apportionment and the proper amount to be borne by the street railway company.

It necessarily follows that the learned circuit judge fell into error in setting aside the order of the Public Service Commission. His judgment in so doing is, therefore, reversed and the proceeding remanded, and the order heretofore made by the Public Service Commission is affirmed. It is so ordered.

All concur; Blair, J., in separate opinion in which Williams, J., joins.

BLAIR, J.

(concurring) — I concur in all of this opinion except that portion which holds that in cases like this the court weighs the evidence as in a suit inequity. My views upon that question are expressed in State ex rel. v. Public Service Commission, 196 S. W. 360. Williams, J,, concurs herein.