Beauchamp v. Pike County

• Decision Date: 28 June 1913
• Parties: J. D. BEAUCHAMP, Appellant, v. PIKE COUNTY
• Court: Missouri Supreme Court

158 S.W. 321

251 Mo. 529

J. D. BEAUCHAMP, Appellant, v. PIKE COUNTY

Supreme Court of Missouri, First Division

June 28, 1913

Appeal from Pike Circuit Court. -- Hon. David H. Eby Judge.

Affirmed.

Hostetter & Haley for appellant.

(1) The court erred in giving defendant's instruction number 1. There is no evidence on which to base this instruction. Plaintiff testified that he used a room in his dwelling as an office room where negroes as well as whites were admitted on official business, and where he kept his records, maps instruments, etc. It goes without saying that negroes would not have been received in his private dwelling on terms of social equality, but calling on official business they were received there and treated as courteously as if they had called at his office in the court house, had he been provided one there. There was no testimony from anybody that plaintiff merely used this room in his dwelling for his own convenience; or that he did not use said room as an office or that he did not use it as a convenience for the public in transacting business with him as county surveyor. An instruction must have some evidence for a basis, else it is error for it to be given. (2) The court erred in giving defendant's instruction 2. While this instruction may be correct as an abstract proposition of law, yet the effect of giving it was misleading to an unsophisticated jury, and it no doubt had the effect it was intended it should have to-wit, of causing the jury to form the erroneous conclusion that as the recorder was the legal custodian of this particular book known as the "Record of Surveys" that therefore there were no public records of which the county surveyor was the legal custodian, and therefore he had no use for an office room, having no records to preserve or keep therein. It would have been just as proper to have told the jury by instruction that the recorder of deeds was the legal custodian of the deed records or the marriage license records, or that the county clerk was the legal custodian of the plats and surveys of public roads after they had been made by the surveyor under directions and orders of the county court and filed by him with the county clerk. Besides this instruction was an unwarranted comment on the evidence and its effect was prejudicial. This instruction is further misleading in that it creates the erroneous conclusion that the recorder alone, and not the surveyor, is responsible for this book known as the "Record of Surveys." This is one of the books covered by the surveyor's bond. Sec. 11293, R.S. 1909. While the book is in the possession of the surveyor he is certainly responsible under his bond for its safe-keeping. Sec. 11303, R.S. 1909, provides that the surveyor shall "keep a fair and correct record of all surveys made by himself and his deputies, in a well-bound book . . . to be procured at the expense of the county." Further on in the same section it is provided that the surveyor shall "deliver a copy of any survey to any person requiring the same, on payment of the fees allowed by law, so long as said record shall remain in his possession." The vice of the instruction is accentuated by its stating only a portion of the law. (3) The court erred in giving defendant's instruction 3. This office rent account was a running account or at least that question should have been left to the jury. (4) The court erred in giving defendant's instruction 4. This instruction is erroneous and prejudicial from any angle it may be viewed. It is conceded that the defendant failed to furnish plaintiff an office. Both Judges Robertson and McCune admitted that they never did provide plaintiff with an office. They both claimed in their testimony that Mr. Beauchamp never demanded an office room of them, but they both admitted that they not only did not furnish or provide him with an office room, but that they never even offered to do so. If this does not constitute a failure to furnish plaintiff with an office, then the common sense canons of construction of the English language must be completely ignored. Yet the jury are told by this instruction, that if the plaintiff made no request of defendant for an office, "and that defendant neither failed nor refused to furnish said office," then he was not authorized to provide such office at his dwelling and could not recover on that issue. Even an offer, not backed up by good faith or deeds would not absolve defendant from its breach of duty. Harkreader v. Vernon County, 216 Mo. 704. (5) The court erred in refusing plaintiff's instruction number 7. This instruction tendered correct propositions of law and embodied the points applicable to the issues in the case at bar. Its correctness is supported by Ewing v. Vernon County, 216 Mo. 681; Harkreader v. Vernon County, 216 Mo. 696, and Motley v. Pike County, 233 Mo. 42. (6) The court erred in refusing plaintiff's instructions 8 and 9. These instructions embody substantially the same issue. If plaintiff as county surveyor was entitled to have an office, or was required by law to maintain one, then the instructions were correct. Ewing v. Vernon County, 216 Mo. 681; Harkreader v. Vernon County, 216 Mo. 696; Motley v. Pike County, 233 Mo. 42; Boone County v. Todd, 3 Mo. 140; County Court v. Ruland, 5 Mo. 268; Saylor v. Nodaway County, 159 Mo. 520; R.S. 1909, sec. 11310. (7) The verdict was against the instructions given by the court on behalf of plaintiff. No one disputed that Mr. Beauchamp maintained his office in a room of his residence; no one disputed that the county court failed to furnish or provide him with an office room; no one disputed that he installed the telephone in his office and paid the 28 months rental out of his own pocket; no one disputed the payment by Mr. Beauchamp of the expenses of the special telephone messages amounting to $ 1.30. The court properly declared the telephone to be a necessity. This is not a case of conflicting testimony so as to render the verdict of the jury conclusive. The evidence was all one way and the jury's verdict was squarely opposed to the evidence as well as the instructions given on behalf of plaintiff. (8) The verdict was against the conceded and admitted facts of the case and should have been for the plaintiff. Boone County v. Todd, 3 Mo. 140; Motley v. Pike County, 233 Mo. 42.

T. B. McGinnis and W. O. Gray for respondent.

(1) Respondent's contention is: That as no proper evidence on the part of the appellant was excluded by the trial court, and no improper evidence on the part of the respondent was admitted, and that, as the law was correctly declared by the trial court, this court will not set aside the verdict of the jury. "It is the province of the jury to determine the credibility of witnesses, and the probative force of their testimony in the trial of law cases, and the courts will not set aside their verdict where there is substantial evidence to support it." Huth v. Doble, 76 Mo.App. 671; Temple v. Railroad, 83 Mo.App. 64; Blanton v. Dold, 109 Mo. 64; Carter v. Railroad, 156 Mo. 635; Plow Co. v. Sullivan, 158 Mo. 440. In his brief appellant does not assign as error that any proper evidence on his part was excluded, or that any improper evidence on the part of the respondent was admitted, in fact he says there was practically no dispute about the evidence. (2) Six instructions were given on behalf of appellant, covering fully all the issues under his contention and declaring the law for him most favorably, as found in the cases of Ewing v. Vernon County, 216 Mo. 81, and Harkreader v. Vernon County, 216 Mo. 696. These instructions in the case at bar were carefully and forcefully drawn by the learned counsel representing the appellant, right in line with the law in these cases. Instructions 7, 8, 9 offered on behalf of appellant were properly refused; but if not, there is no reversible error, for the reason that all the issues were fully covered by the six instructions given. Conolly v. Printing Co., 166 Mo. 447. Instruction seven asked the court to instruct the jury as to furniture, fuel, janitor service, all items not embraced in his account, and was therefore properly refused. Instructions 8 and 9 were fully covered by the six instructions given, and were refused also for the reason indorsed in each of them by the trial court: "That as applied to this case the instruction is misleading, while it may be the duty of the county to furnish such room, yet, if voluntarily and without any refusal on the part of the county to furnish him a room elsewhere, plaintiff selected a room in his residence, the county would not be bound to furnish a room elsewhere in the sense intended by the instruction." But in any event appellant cannot complain because the six instructions given covered all issues and declared the law for him fully and forcibly.

BOND, J. Lamm and Graves, JJ., concur. Woodson, P. J., dissents in separate opinion.

OPINION

BOND

STATEMENT BY THE COURT.

The plaintiff is the county surveyor of Pike county and was serving his third term, when he brought this suit against the county for the reasonable value of the use of one of the rooms of his house as a public office, for eight years and four months, alleged to be $ 505; for the installation of a telephone at said residence two years and two months, $ 28; and for special telephone messages, $ 1.30. Th answer was a general denial and the plea of the Statutes of Limitations for five years as to the indebtedness existing beyond that period, before suit.

Plaintiff, whose business is that of dairyman and milk dealer, stated that he used one of the rooms of his residence, about one-half mile from town, for his office as county surveyor; that persons who had official...