Campbell v. Myers
| Decision Date | 08 November 1926 |
| Docket Number | No. 15619.,15619. |
| Citation | 287 S.W. 842 |
| Parties | CAMPBELL v. MYERS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Putnam County; L. B. Woods, Judge.
Action by J. Gryle Campbell against Daniel C. Myers. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
P. M. Marr, of Milan, and W. O. Irwin, of Jefferson City, for appellant.
Calfee & House and A. L. Burns, all of Milan, for respondent.
This is an action in damages for alleged malicious prosecution. Defendant is a resident of Green City, in Sullivan county, Mo., and is engaged in farming and in the mercantile business. He also owned and operated numerous telephone lines and switchboards in Sullivan and adjoining counties. Among others, he owned and operated a switchboard and lines at the village of Green Castle, located four miles east of Green City. The Green Castle system was known as the Green Castle Telephone Company. At the time of the occurrences which resulted in the present controversy, plaintiff, who was reared in the community, also resided in Green City. His occupation was that of telephone lineman, or what is known in the parlance of the telephone business as a "trouble shooter," and it was his duty to construct new lines and repair and care for lines in use on the report of trouble thereon.
It appears from the record that some time in March, 1919, plaintiff was employed by defendant as a lineman to take care of defendant's lines and switchboards at the towns of Newtown and Harris in Sullivan county and Lucerne in Putnam county, and plaintiff moved to Newtown. He continued in such employment for a period of 15 months at Newtown, and later at Green Castle for 3½ months, and, outside of steady employment, he worked some by the day now and then for a period of 18½ months. It appears plaintiff's removal from Newtown to Green Castle was brought about by the influence of the patrons of defendant's telephone lines at Newtown. It is defendant's contention that at the end of 3½ months at Green Castle plaintiff could not get along with the patrons of defendant's telephone company, and he was discharged by defendant. Thereupon plaintiff moved back to Green City.
In the month of November, thereafter, defendant went to the state of Oregon on business, and was gone for 6 weeks. It is in evidence that while ho was thus in Oregon plaintiff went to the neighborhoods of Harris and Newtown, claimed to be in the employ of defendant, and worked on defendant's lines there about 3 weeks. Defendant asserts that plaintiff was not in his employ at that time. but that plaintiff went to work voluntarily after defendant went to Oregon. This, however, is controverted by plaintiff. During this period, and while defendant was absent from the state, plaintiff went to defendant's switchboard operator at Harris and demanded that she pay him $100 which plaintiff claimed defendant owed him, and the money was paid to him. About a week later, plaintiff demanded more money of said operator, which she refused to pay. Plaintiff worked until 5 p. m. on the day of his last-named demand, at which time he had cut some fifteen telephone lines, intending to place four poles, cut out some old wire to splice with new wire, cutting all said wire at once. It appears that in the evening of that day plaintiff called defendant's brother Prank, at Green City, and demanded more money, but was told defendant had made no arrangement for advancing any money to him; plaintiff stated that the work was half done and had to be finished, and that, if pay was not forthcoming, plaintiff would go home. The pay was not forthcoming, and plaintiff went away, leaving the said wires cut and on the ground, thus cutting off communication over the trunk lines into Harris and Newtown. It appears that thereafter amicable relations between plaintiff and defendant were no longer existent.
About the first of the year 1923, and after the relation of employer and employee between plaintiff and defendant had ceased, plaintiff entered the service of the Missouri Power & Light Company at Novinger, in Adair county, Mo., as a "trouble shooter." This company, as its name would imply, was engaged in producing and distributing electricity to consumers thereof, in the vicinity where the telephone lines were established. There was an agreement between defendant and the Missouri Power & Light Company whereby the two companies were to use the same poles for their wires leading into Green Castle, and defendant's telephone wires were attached to the poles owned by the power company, under said agreement. Six of defendant's lines were attached to the power company's poles running east from Green Castle, three being on each side of the poles. A short distance east of Green Castle there was what is known as a "two-pole turn" in the line of power and telephone wires. The two poles were leaning inward on account of improper setting and anchorage, and the power company had instructed plaintiff to straighten the two poles so leaning. There were orders that the work should be done on a Sunday, as the current of the power line had to be cut off during the process, and cutting the power off on Sunday would discommode customers less than on other days of the week.
It is shown by plaintiff's testimony that 3 or 4 weeks prior to May 27, 1923, he told some of defendant's employees of his intention to straighten the said poles on some favorable Sunday. Plaintiff admits that the exact Sunday on which the work would be done was not specified by him. On Sunday, May 27, 1923, plaintiff decided to straighten the said poles, and had arranged with the Power & Light Company to shut off the power from 9 a. m. to 5 p. m. of said day, during which time the poles were to be straightened. In the morning of said day, both plaintiff and defendant are shown to have been in Green City. Plaintiff did not inform defendant of his intention to do the work on that day, but shortly before 9 o'clock in the morning of that day he told defendant's switchboard operator, a young woman, that he was going out to straighten those two poles, and wanted defendant to take care of his wires as per the contract with the Power & Light Company.
There is some dispute as to the exact hour when this notice was given. Plaintiff testified it was about 8:30 a. m., or possibly a little later. The operator who received the notice testified that she received it at about 8:55 a. m.; that she told plaintiff that defendant's lineman was away from home in Iowa and would not return until the first of the week, and that she could do nothing. It appears in evidence that at no time did plain" tiff notify defendant or any of his agents or employees that he was going to cut any of defendant's wires; but there is testimony tending to show that the cutting of all the wires was necessary to a proper straightening of the poles.
Plaintiff proceeded to his task, cutting the wires of both the Power & Light Company and defendant. He cut defendant's wires on both sides of the cross-arms on the two poles, and allowed them to lie as they fell, in a more or less tangled condition. He then straightened the two poles and reconnected the wires of the Power & Light Company, but did not reconnect the telephone wires, on the theory that, under the existing contract, "they should take care of their own wires." It appears defendant had no information as to what plaintiff had done until the following day, when complaints were received from patrons of the telephone lines. On investigation, defendant learned of the notice given his switchboard operator the previous day. Defendant's lineman returned from Iowa on Tuesday following, and on that day the lines were repaired, communication over the wires having been cut off during the period from Sunday until Tuesday.
Thereupon defendant wrote the Power & Light Company in regard to the cutting of the wires, receiving a reply from said company disclaiming any responsibility for plaintiff's act, and stating that he cut the wires without instructions from them so to do; that they could not understand why he would do it, and that they had no objections to defendant's prosecuting Campbell for his act. Thereupon defendant wrote a letter to the prosecuting attorney of Sullivan county, as follows :
The letter of the Power Company inclosed therewith was as follows:
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