Cox v. St. Louis, M. & S. E. Ry. Co.

• Decision Date: 22 January 1907
• Citation: 100 S.W. 1096,123 Mo. App. 356
• Parties: COX et al. v. ST. LOUIS, M. & S. E. RY. CO.
• Court: Missouri Court of Appeals

100 S.W. 1096

123 Mo. App. 356

COX et al. v. ST. LOUIS, M. & S. E. RY. CO.

St. Louis Court of Appeals. Missouri.

January 22, 1907.

Rehearing Denied March 19, 1907.

1. HUSBAND AND WIFE—ACTION BY WIFE— SEPARATE ESTATE—ESTATE BY ENTIRETY.

Under Rev. St. 1899, § 4340 [Ann. St. 1906, p. 2382], declaring the real estate of a wife to be her separate property, and section 4335 [Ann. St. 1906, p. 2378], vesting a married woman with the power to sue and be sued as a feme sole, a wife may sue without joining her husband for the whole damage done to land held in entirety by a trespasser who entered without her consent.

2. SAME.

Rev. St. 1899, § 4340 [Ann. St. 1906, p. 2382], declares the real estate of a wife to be her separate property. Sections 545 and 4335 [Ann. St. 1906, pp. 584, 2378] authorize a wife to sue with or without joining her husband. Held, in an action by both husband and wife to recover damages to an estate held in entirety by reason of a trespass, that there having been a trespass as against the wife, and she being entitled to sue therefor and recover the entire damage alone, a judgment for the entire damage was not erroneous, notwithstanding the husband, as to himself, may have consented to the trespass.

Appeal from Circuit Court, Butler County; J. C. Sheppard, Judge.

Action by G. T. Cox and another against the St. Louis, Memphis & Southeastern Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

The facts of this case are fully stated in the report of the decision given on a former appeal. 111 Mo. App. 394, 85 S. W. 989. As the evidence in the present record is not materially different from that shown in the previous record, it will be unnecessary to recite the facts at length; but some statement should be given to assist the reader in understanding the questions raised. The action is one on the statute allowing treble damages to be awarded for a malicious trespass. The trespass alleged was that defendant entered on plaintiffs' land against their will and excavated and removed some 3,500 car loads of sand, soil, and gravel. The title to the land was vested in the two plaintiffs. In the answer defendant denied the averments of the petition, and pleaded that one I. M. Dittenhoefer was the original contractor for building and completing defendant's railroad; that said Dittenhoefer, through his subcontractors and agents, bought from plaintiffs the privilege of entering on their land and taking sand therefrom, at the rate of $20 an acre; that Dittenhoefer and his said subcontractors and agents took what sand was taken from plaintiffs' land and paid plaintiffs for it, except a balance which had been tendered; that neither defendant nor its agents or servants entered on the land or took any sand therefrom. The pleadings are exactly like they were before. The title to the land was vested in the two plaintiffs as an estate of entirety by virtue of a deed executed in 1892. G. H. Sullivan, who was superintendent of maintenance of the right of way of defendant company, had entered into an agreement with G. T. Cox, one of the plaintiffs, permitting the railroad company to procure sand from the farm. The company needed considerable sand in the construction of its road, and a sandbank on plaintiffs' farm had attracted Sullivan's attention. The case turns on the terms of the agreement made between Sullivan and Cox, as to which there was a radical contradiction in the testimony. If Cox's version is true, the defendant company was a trespasser in taking the sand; whereas, if Sullivan's version is true, it acted within its rights. Cox's statement of the agreement was that, in consideration of the railway company building a depot on his farm, he agreed that the company might take sand from a strip embracing two acres along the right of way, but the company excavated more than 1,200 feet from the right of way. He denied having authority to agree for Mrs. Cox. Sullivan's statement was that Cox agreed the company might take all the sand it needed from any part of the farm at $20 per acre. Plaintiffs' farm contained 80 acres. This diagram will show the long strip parallel with the right of way from which Cox swore he agreed the company might get sand, provided it would build a depot on his farm, also the tract from which the company took sand.

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The following instruction was given for plaintiffs: "The court instructs the jury that if you believe and find from the evidence that the defendant, by its servants, agents, employés, and officers, without the consent or authority of Mrs. S. J. Cox, and without the consent of G. T. Cox, or either of them, on or about the 25th day of April, 1902, entered upon their farm, and between that date and the 25th day of July, 1902, without such consent or authority, dug up, took, and carried away from said farm sand, soil, and gravel then and there being on said land, then your verdict must be for the plaintiffs, and in such sum as you may believe from the evidence the reasonable market value, for any purpose, of such sand, soil, and gravel to have been at the place where taken from, not to exceed $1,500."

The court, on its own motion, gave this instruction: "The court instructs the jury that if you find and believe from the evidence in this case that G. T. Cox was authorized to act for his wife, and made the contract testified to by Sullivan and Johnson, and that the defendant entered upon said lands under said contract and took the sand, it was not a trespasser at all, and is liable for the contract price of the sand so taken only, and that this is true notwithstanding you may believe and find from the evidence that plaintiff notified defendant to get off the premises after it had begun work, and you should find for the plaintiffs in the sum of $20 per acre for the amount of acres taken; and, on the other hand, if you believe the contract was, as testified to by Mr. Cox, that he agreed to take $20 per acre provided a depot was built there, then the defendant was a trespasser, and your verdict should be for the plaintiff in such sum as you believe to have been the market value of the sand taken as in instruction numbered one."

The following instructions were asked by the defendant:

"The court instructs the jury that the land from which the sand was taken is in the name of the plaintiffs, G. T. Cox and S. J. Cox, husband and wife, and if you believe and find from the evidence that Cox sold the sand to I. M. Dittenhoefer, or the defendant, for $20 per acre, and that his wife, S. J. Cox, consented and acquiesced therein, then they would not be entitled to recover in any sum exceeding the amount contracted for; and as to whether his wife S. J. Cox consented and acquiesced therein is a question that you may determine from all the facts and circumstances surrounding the case, and need not be proved by direct and positive testimony."

"The court instructs the jury that if you find from the evidence that plaintiff G. T. Cox, at any time, discussed the price that he was getting for the lands in the presence of his wife, Mrs. S. J. Cox, and stated the price that he was to receive, and that she, the said S. J. Cox, interposed no objections, or remained silent during said conversation, that is a fact that the jury may take into consideration in determining whether G. T. Cox was acting as the agent of his wife or not, and whether she consented and acquiesced in the sale of said land to the defendant or any other person." Both of these instructions were refused as asked and given in a modified form. The first one was modified by striking out the words, "I. M. Dittenhoefer or," and interlining "G. H. Sullivan, agent of." The second instruction was modified by striking out the words, "or any other person," at the close of the last sentence.

The following instructions were asked by defendant and refused:

"The court instructs the jury that if you find from the evidence that the plaintiffs agreed with I. M. Dittenhoefer, the original contractor, or defendant, or either of them, or their agents, to sell the sand at the rate of $20 per acre, and that they entered under that contract and removed the sand, then that is all they could obtain judgment for, and, if you find such to be the facts, you will ascertain how many acres of sand was taken and return a verdict for whatever amount you may find to be due on account thereof at the rate of $20 per acre."

"The court instructs the jury that if the defendant or its agents or servants entered plaintiffs' land...