Cacioppo v. Southwestern Bell Tel. Co.

• Decision Date: 02 May 1977
• Docket Number: No. 28034,28034
• Citation: 550 S.W.2d 919
• Parties: Marie CACIOPPO, Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant.
• Court: Missouri Court of Appeals

Page 919

550 S.W.2d 919

Marie CACIOPPO, Respondent, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant.

No. 28034.

Missouri Court of Appeals, Kansas City District.

May 2, 1977.

James E. Taylor, J. Curtis Nettels, Kansas City, Jack C. Lorenze, William C. Sullivan, James A. Daugherty, St. Louis, for appellant.

Marie Cannon, Allan R. Browne, Ennis, Browne, Martin & Tapp, Kansas City, for respondent.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special JJ.

ANDREW JACKSON HIGGINS, Special Judge.

Appeal from verdict and judgment for plaintiff in action for actual and punitive damages for continuing trespass to real estate. The dispositive question is whether the court erred in permitting recovery for damages which arose prior to five years immediately preceding institution of the action. Reversed and remanded.

Respondent has moved to dismiss this appeal for the reasons: (1) The notice of appeal is insufficient to confer jurisdiction because if states that defendant "appeals from the judgment entered * * * on the ninth day of May, 1975"; the judgment was entered April 3, 1975; defendant's motion for new trial was overruled May 9, 1975, but this was not an appealable order under Rule 81. (2) Appellant's statement of facts is partisan, inadequate, and unfair, in violation of Rule 84.04(c), and its points are general and do not state wherein or why the court erred in violation of Rule 84.04(d).

The motion to dismiss the appeal is overruled: (1) Although defendant should have expressed its appeal as taken from the judgment entered April 3, 1975, and not from the "judgment" entered May 9, 1975, the record demonstrates that defendant's reference to May 9, 1975, was inadvertent, and that it made a good faith effort to appeal from the judgment. Its notice of appeal is so treated. Rule 84.04, V.A.M.R.; Dors v. Wulff, 522 S.W.2d 325, 326(1) (Mo.App.1975); Matter of Estate of Langford, 529 S.W.2d 31, 32(2) (Mo.App.1975). (2) Appellant's brief demonstrates a good faith compliance with the rule governing contents of briefs, and it complies with the policy of the supreme court in that it is "reasonably possible" to decide the points raised on their merits. Wykle v. Colombo, 457 S.W.2d 695, 698(1) (Mo.1970).

On May 2, 1972, plaintiff filed her petition for damages alleging: that for approximately 15 years defendant wrongfully and without just cause or excuse maintained a junction box for electrical (telephone) equipment in her apartment building; that the junction box required frequent inspection, servicing, and repair; that defendant's employees frequently and continuously entered the area of the box without permission and against her will, causing disturbance of (herself) her tenants and prospective tenants, and loss during said period of approximately $60 per month; that during the period 1954 to 1972, defendant, pursuant to the foregoing entries, continually littered the floor of the area of the box with wires, trimmings, scraps of materials, and other debris, "all as a matter of trespass and against the will of" plaintiff, creating a nuisance and necessitating repair and cleaning at her expense resulting in damage of $6,240; that by reason of defendant's wrongful, illegal, and willful placing of said junction box without authority from plaintiff and as a direct result of "the trespass and nuisance created as herein set forth," plaintiff's privacy was invaded, she suffered harassment, she was disturbed during an illness in 1961, her beauty salon business was damaged during 1964, 1965, and 1966, she lost tenants, she was unable to remodel her building, and it was rendered unsightly; that such acts resulted from legal malice, all to her actual and punitive damages in like sums of $50,000.

Defendant's answer, among other things, pleaded the bar of the 5-year statute of limitations, Section 516.120, RSMo 1969.

Appellant tacitly concedes that plaintiff made a case, and the evidence need be stated only to the extent necessary to an understanding of the case and resolution of the dispositive question.

In 1952, Marie Cacioppo purchased a 6-unit, 3-story apartment building at 1815 Brownell, Kansas City, Missouri. The building was one of a group of seven apartment buildings on Brownell and Woodland. She and her family occupied one apartment in her building, and she rented the remaining apartments to various tenants. One such apartment was made available for lease after her acquisition of the building by remodeling an area in the basement.

At the time of plaintiff's purchase, there was located in the basement of the building certain telephone equipment owned and maintained by Southwestern Bell Telephone Company. The equipment consisted of cables leading into, and a number of wires leading out of, a junction box or cross-box. The box and equipment had been installed by Kansas City Telephone Company in 1923 or 1924, and Bell acquired it in 1927.

Mrs. Cacioppo knew of the existence of the telephone equipment in the basement before she purchased the building, but did not know the extent of service it provided. She thought it was "all just part of the basement." A junction box serves as an access to line pairs leading to many telephones. The box in question served not only the telephones in plaintiff's building, but also the telephones of defendant's subscribers in the buildings clustered near 1815 Brownell. A junction box requires periodic service, and when trouble involves a telephone served by the box, it is necessary that repairmen have access to the box. The box in question, located as it was in plaintiff's private premises, necessitated arrangements between plaintiff and defendant's repairmen for purposes of entry into plaintiff's basement.

Shortly after, plaintiff learned that the junction box served buildings other than her own, and she began to complain of the presence of the box in her basement. She complained of it as an eyesore, and of consistent calls at her house by repairmen wanting access to her basement. She called the Bell office, and sought and gained an appointment with a Bell "district manager." When they met, she told the company's representative, "You are going to have to do something about this box," and she was assured by him that "they would send somebody out."

In June, 1952, plaintiff had a baby. During the baby's infancy, she was constantly bothered in her daily routine by arrangements to meet telephone people to let them into her basement or to "leave the key with a neighbor or somebody to let the telephone people come in." During this period, the telephone people would come "two or three times a day, sometimes. I have had them as high as five times a day, with trouble for somebody in the box." She continually protested such interruptions by calling the telephone company and asking that the junction box be removed. She received repeated assurances that someone from the company would come to her place; but when only servicemen came they would laugh at her and tell her, "You're not going to get the telephone company to do anything."

In 1964 plaintiff returned to her work as a beautician, first at a shop in the Hilton Inn, later for a year at a shop on West 12th Street, and still later at a shop in one of her apartments. During the operation at the Hilton and on 12th Street, she often had to leave her customers at the shop and drive to 1815 Brownell to admit defendant's repairmen. On one occasion she was called by a telephone customer serviced through the junction box and was chided for not remaining at home to admit repairmen. On another occasion, a "district manager" of defendant called on plaintiff at her shop and, in the presence of customers, told her a man, seriously ill, whose telephone connected to the junction box, had reported telephone trouble and stated he might die and "it would be my fault if the man passed away because I was not home to let the telephone man in." He also told plaintiff that unless she arranged to have a basement key available to servicemen at all times the company would "get to me by taking both my personal phone out and my beauty shop phone, which would completely put me out of business, then."

As a result of the last incident, plaintiff called the Missouri Public Service Commission in Jefferson City, and talked to Mr. "Perkinger" (Gordon Persinger) of the commission's Department of Rates and Services. Mr. Persinger transferred her call to a 3-party call with an unidentified "representative" of the telephone company as a third party. Mrs. Cacioppo detailed her complaints with respect to the company and its junction box, after which Mr. Persinger told the representative, "I can't understand why you would want to bother this lady all of this time, when it isn't necessary. * * * You should have had that (junction box) taken out a long time ago. * * * Do something about it. And if she can't afford a lawyer, I am going to get her mine."

After her call to Mr. Persinger, plaintiff consulted a lawyer and decided to deny further access to the junction box to telephone company personnel. She was advised by defendant, by letter of December 20, 1971, from Robert Pfeneger, that her denial of access to the junction box was jeopardizing telephone service to other customers and if access was not given by December 27, 1971, her own service would be terminated. On January 13, 1972, plaintiff's attorney sent a letter to defendant demanding removal of the box. The parties subsequently reached agreement with respect to access and correction of problems. In March, 1972, defendant completed work in plaintiff's basement so that the junction box no longer served any telephone outside plaintiff's building and it was no longer necessary for defendant's personnel to gain access to her basement for trouble calls other than her own.

Throughout the period 1952-1972, in addition to the foregoing complaints of nuisance and annoyance arising from the access problem, plaintiff continually...