Cartwright v. Liberty Telephone Co.

• Decision Date: 29 June 1907
• Citation: 205 Mo. 126,103 S.W. 982
• Parties: CARTWRIGHT et al. v. LIBERTY TELEPHONE CO.
• Court: Missouri Supreme Court

103 S.W. 982

205 Mo. 126

CARTWRIGHT et al. v. LIBERTY TELEPHONE CO.

Supreme Court of Missouri, Division No. 1.

June 29, 1907.

1. EXCEPTIONS, BILL OF — FILING — TIME — LAST DAY A HOLIDAY.

That the first day of the term, being the day until which appellant was allowed to file its bill of exceptions, was a legal holiday did not excuse its failure to file the bill on or prior to that day.

2. APPEAL — BILL OF EXCEPTIONS — FILING.

Where a bill of exceptions was not filed within the time allowed, there is nothing for review except the record proper.

3. SAME — PRESENTATION OF ERROR — OBJECTION TO PETITION.

An objection that the petition does not state facts sufficient to constitute a cause of action may be raised for the first time on appeal.

4. TELEPHONES — RIGHTS IN THE USE OF STREETS.

A telephone company not shown to have been granted a franchise to conduct a telephone business in a city, or authorized to use the city streets, cannot defend an action for mutilating trees growing in a city street on the ground that the erection and maintenance of telephone lines is a proper use of a street, and that trees interfering with that use may be rightfully cut.

5. MUNICIPAL CORPORATIONS — STREETS — RIGHTS OF ABUTTING OWNER — PLANTING OF TREES.

A lot owner may plant shade and ornamental trees in a city street subject to the right of the city alone, or such as it may authorize to remove or trim the same where they interfere with a proper use of the street.

Appeal from Circuit Court, Clay County; J. W. Alexander, Judge.

Action by Eva Cartwright and others against the Liberty Telephone Company. From a judgment for plaintiffs, defendant appealed to the Kansas City Court of Appeals. On motion, the Kansas City Court of Appeals transferred the cause to the Supreme Court on the ground that a constitutional question was involved. Affirmed.

The plaintiffs instituted this suit against the defendant in the circuit court of Clay county to recovery damages for injuries done their property, caused by cutting, and otherwise mutilating, ornamental and shade trees growing along the sidewalk near the curb line in front of their dwelling on one of the public streets of the city of Liberty. The petition for cause of action alleged, substantially, that the defendant was a corporation, organized and existing under and by virtue of the laws of the state of Missouri; that on September 10, 1903, and prior thereto, the plaintiff's owned and were in possession of the property (describing it), and that it had been improved by the erection of a good dwelling thereon, reasonably worth the sum of $4,500, and had been further improved by setting out shade trees along the pavement in front of said lots, which had grown to be large trees and served to both beautify said property and to protect the said dwelling house which fronted west from the west sun, which added greatly to the comfort and enjoyment of said dwelling; that said trees were located along the pavement, between the center line of the street and the said dwelling aforesaid, and were the property of the plaintiffs; that on September 10, 1903, the defendant, by its agents, officers, and servants, acting within the line of their employment, willfully and wrongfully cut and mutilated the tops and branches of said trees, thereby destroying their beauty and the shade and the comfort they afforded those in the occupancy of said dwelling; that no damages were assessed, nor paid, before said trees were cut, nor at any time, nor were any commissioners appointed for assessing said damages, but defendant cut and mutilated said trees in the presence of Eva Cartwright, one of the plaintiffs, against her consent and over her objections, and in a willful, wanton, and insulting manner, and in reckless disregard of the rights of plaintiffs; that by the wrong aforesaid done said property was injured and depreciated in value to the amount of $200; and that plaintiffs were entitled to exemplary damages in the sum of $500, and the prayer was for judgment for said sums. The answer virtually admitted all the allegations of the petition, excepting the damages. It alleged that the limbs and branches of said trees were in the line of and obstructed its cable and interfered with its telephone service to the public; that said limbs and branches had grown up and pressed against said cable and caused cracks and holes to be rubbed and worn therein, through which rain and water leaked, and that it was thereby greatly damaged and prevented from carrying on its business and from discharging its duty to the public; that, in order to remove said obstructions, it did, in a careful and prudent manner, cut and trim said trees and the branches thereof, in a manner to do as little damage thereto as was possible and to mar them no more than was absolutely necessary under the circumstances. It also alleged the defendant acted in good faith, and denied all willful and wanton conduct on the part of its agents and servants.

There was a trial before the court and jury. The plaintiffs introduced evidence tending to prove all the allegations of the petition; and the defendant's testimony introduced tended to establish those of the answer. The jury found for the plaintiffs, and assessed their compensatory damages at the sum of $10 and the exemplary damages at the sum of $25. In due time defendant filed its motions for a new trial and in arrest of judgment, which were, by the court, overruled, and defendant excepted, and, in due time, appealed the cause to the Kansas City Court of Appeals. The appeal was allowed November 12, 1903, and appellant was allowed until the first day of the February term, 1904, of said court in which to file its bill of exceptions; but the record...