Coverdale v. Edwards

• Decision Date: 30 October 1900
• Docket Number: 18,836
• Citation: 58 N.E. 495,155 Ind. 374
• Parties: Coverdale et al. v. Edwards
• Court: Indiana Supreme Court

58 N.E. 495

155 Ind. 374

Coverdale et al. v. Edwards

No. 18,836

Supreme Court of Indiana

October 30, 1900

From the Allen Circuit Court.

Reversed.

Mann & Beatty, J. T. France and O. N. Cranor, for appellants.

Peterson & Peterson, H. F. Colerick, C. J. Lutz, R. K. Erwin and P. G. Hooper, for appellee.

OPINION

Baker, C. J.

This action was begun in the Adams Circuit Court. The venue was changed to Wells and thence to Allen. Appellee's complaint charged that appellants, in pursuance of a conspiracy to injure appellee, maliciously cut down certain poles and electric wires belonging to appellee and lawfully maintained by him in the streets of the city of Decatur Indiana, thereby destroying his property and business, to his damage in the sum of $ 15,000. Appellants filed answers in general denial and in justification. Appellee's demurrer was sustained to the answers in justification. The trial resulted in a general verdict and judgment in favor of appellee for $ 4,000. Appellants' joint motion for a new trial was overruled. The joint motion of two appellants, the city attorney of Decatur and his law partner, for a new trial was overruled. Errors are assigned on each adverse ruling.

Inasmuch as the appellants admit in their brief that the court allowed them under their general denial to introduce all the evidence that would have been admissible under their answers in justification, the error, if any, committed in sustaining the demurrer is not available to appellants.

The principal contentions are that the verdict is not sustained by the evidence and is contrary to law and that the damages are excessive.

Of the thirteen appellants, five were councilmen of the city of Decatur, one was the city attorney, one was the city attorney's law partner who joined in advising the council, one was the city marshal, and five were persons employed by the marshal to assist him in executing the commands of the council. In 1889 the council adopted the following resolution: "Resolved that the Thompson &amp Houston Electric Light Company be and are hereby given and granted permission to plant and erect poles in the streets and alleys of Decatur for the purpose of stringing wires thereon to furnish electric lights to the citizens of said city. The planting of such poles shall be made under the direction of the street commissioner of said city and he shall see that the same are not erected so as to inconvenience said citizens. The said council hereby reserve the right to revoke this grant, and demand that the poles be removed, and remove the same if necessary." The Thompson & Houston Company erected certain poles and wires, and afterwards conveyed the property to appellee and assigned to him the rights under the foregoing resolution. The city did not formally consent to the assignment; but in 1893 the city entered into a contract with appellee whereby appellee was engaged to supply the city with a certain number of street lights for three years at so much per light per year. After the expiration of this contract, the city decided to put in an electric light system for itself. On August 18, 1897, the council adopted the following resolution: "Whereas the common council of the city of Decatur, Indiana, on the 10th day of February, 1893, entered into contract with one J. D. Edwards whereby said Edwards agreed to supply the city of Decatur with a certain number of street lights for the term of three years at a certain price per light per annum, which contract is spread of record in the records of proceedings of the common council of the said city of date of February 21, 1893; and whereas the contract under which the said Edwards furnished the said city with electric lights expired on the 10th day of February, 1896, and has not been renewed, but was by resolution of the said common council discontinued on the 13th day of July, 1897; and whereas under the said contract the said Edwards erected a number of poles in the streets, alleys and public grounds of the said city, and strung wires and lamps thereon for the purpose of supplying the said electric lights to said city for street purposes, which poles, wires and lamps are now not being used and are in the way of others which the said city proposes to erect for the construction of an electric light plant to be owned and controlled by the said city; therefore be it resolved that the city marshal be and he is hereby directed to notify the said J. D. Edwards to take down and remove all his poles from the streets and alleys and public grounds of the said city within fifteen days from the date of the receipt of the notice or the same will be removed by said marshal under and by order of the common council; and be it further resolved that, should the said Edwards fail or refuse to remove or cause to be removed all such poles, wires and lamps from the said streets, alleys and public grounds within the time mentioned in the said notice, the said marshal shall procure sufficient help and remove the said poles, wires and lamps immediately thereafter." On August 19, 1897, the marshal served upon appellee the following notice. "To J. D. Edwards: You are hereby notified that the common council passed a resolution at their meeting held August 18, 1897, ordering the removal of all your poles, wires and electric lamps from the streets, alleys and public grounds of the city of Decatur, Indiana, within fifteen days from the date of the receipt of this notice by you. You are therefore hereby notified to remove or cause to be removed all the electric light poles, wires and lamps now erected and maintained by you in any of the streets, alleys or public grounds in said city within fifteen days from this date, or I will, under orders of the said council, cause the same to be taken down and removed far enough that they will not interfere with the erection of new poles, wires and lamps to be erected by said city. Dated this 19th day of August, 1897. M. F. Cowan, city marshal." At the time of passing the resolution of August 18, 1897, the members of the common council did not know of or did not remember the grant of 1889. Appellee removed some of the poles and wires that had been used in lighting the streets, but left standing others of that line and all of the line used in supplying lights to individuals. By September 28, 1897, the construction of the city's line had reached the places where appellee's poles and wires were left standing. The marshal had not yet executed the order contained in the resolution of August 18th. At their regular meeting on the evening of September 28th, the common council, in executive session, passed the following resolution: "Whereas, on the 18th day of August, 1897, the common council of the city of Decatur, Indiana, ordered the removal of the electric light poles, lamps and wires of J. D. Edwards from the streets, alleys and public grounds of said city within fifteen days from the date of the receipt of notice by him; and whereas, in accordance with the resolution then adopted, the marshal of said city notified the said Edwards on the 19th of August, 1897, to take down and remove within fifteen days all such poles, wires and lamps from the streets, alleys and public grounds of said city; and whereas the said Edwards has only partially complied with the requirements of said resolution and has left standing on Main or Second street, between Jefferson and Jackson streets, all his poles, lamps and wires the same as before the adoption of said resolution and service of such notice; and whereas it is imperative that the city of Decatur shall have the immediate use of Second street from Jefferson street to Jackson street on both sides thereof; therefore be it resolved that the city marshal be and he is hereby ordered to employ sufficient force of men to immediately remove from said Second street between Jefferson street and Jackson street all poles, wires and lamps belonging to said J. D. Edwards by removing the wires and lamps and cutting down the poles, doing as little damage to the poles, wires and lamps as under the circumstances is practicable." After the adjournment of the meeting, some of the members of the common council directed the marshal to remove appellee's poles and wires that night. One of the attorneys notified a workman that the marshal would need his services. About two o'clock that night the marshal and his assistants cut the wires and sawed off the poles from six inches to two feet above the ground. The consequence was that appellee was unable longer to conduct his business. The marshal and those who assisted him in removing the poles and wires acted solely in obedience to the orders of the council, and not at all from any intention or willingness to injure appellee. The foregoing...