Haupt v. Indep. Tel. Messenger Co.

• Decision Date: 04 March 1901
• Parties: HAUPT v. INDEPENDENT TEL. MESSENGER CO. et al.
• Court: Montana Supreme Court

25 Mont. 122

HAUPT

v.INDEPENDENT TEL. MESSENGER CO. et al.

Supreme Court of Montana.

March 4, 1901.

Appeal from district court, Silverbow county; William Clancy, Judge.

Action by Henry S. Haupt against the Independent Telegraph Messenger Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Pigott, J., dissenting in part.

Oliver M. Hall, for appellant.

MILBURN, J.

This is an action wherein the plaintiff appeals from the judgment against him dissolving a restraining order and for costs. The complaint was filed February 15, 1896, praying for injunction to enjoin defendants from injuring and destroying certain poles, wires, and appliances said to belong to plaintiff, and from in any wise hindering plaintiff in the operation of a certain alleged messenger system, pursuant to the terms of a franchise granted by the city of Butte. It is alleged in the complaint that the city of Butte, by its ordinance numbered 364, granted to the predecessors of plaintiff certain franchises and privileges, to wit, to certain franchises and privileges, to wit, to string wires over and across the buildings on Main street, from Copper to Mercury, and from Arizona to Montana, and to cross said streets in the city of Butte, without erecting any poles or posts on said streets, for the purpose of constructing “a parcel delivery and telegraph call system” within said city, and to erect and maintain poles and wires, with necessary arms and braces, on such other streets and alleys as may be necessary to carry on said business; that the plaintiff and his predecessors have at all times faithfully complied with all conditions imposed by the ordinance, and with all ordinances and regulations relating thereto, adopted by the city council and its officers: that, pursuant to the terms of said franchise, plaintiff “has constructed and erected, within the city of Butte, wires and poles and appliances for a district messenger service, and is now about to operate the same in accordance with the terms of said franchise”: that, “since the completion of the work of constructing said appliances for the operation of said messenger service, the defendants, and all of them, have threatened to this plaintiff that, if he attempts to operate said messenger system in accordance with the terms of said franchise, they will, by force, destroy said appliances and poles, and cut said wires, and by force render said messenger system inoperative”; that such acts will delay and obstruct plaintiff in the operation of said system, and render said messenger system inoperative”; that such acts will delay and obstruct plaintiff in the operation of said system, and render said system and the said franchise valueless to plaintiff; and that damages cannot be compensated in an action at law. Defendants answered, and plaintiff replied. Upon the trial, November 24, 1897, the defendants objected to the introduction of any proof by the plaintiff, upon the ground that the complaint did not state a cause of action against them, or any of them; which objection was sustained, the plaintiff excepting. Thereafter, and before the jury was excused, the plaintiff, in writing, moved the court for leave to amend his complaint. The court discharged the jury, and set the motion to be heard on November 27, 1897. The hearing was continued by consent. On December 1, 1897, a proposed amended complaint, embodying the matter contained in said motion, was served on defendants, and was duly presented to the court, together with said motion. The amended complaint sets out the said ordinance in full, and repeats, substantially, the allegations of the original complaint, except in the amended complaint it is averred that the poles, wires, and appliances are “for a district service,” and, as to the threats, it declares that, “since the completion of the work of constructing said appliances of the work of constructing for the operation of said messenger service, the defendants, and all of them have threatened this plaintiff that, if he attempts to operate said messenger system in accordance with the terms of said franchise, they will, by force, destroy said appliances, and render said messenger system inoperative, and, if not restrained by the order of this court, defendants will carry said threats into execution.” It further states “that the poles, wires, and appliances which the defendants threaten to destroy are absolutely necessary and indispensable to the carrying on of the said business, and, if the same are injured or destroyed, said business cannot be carried on while the said wires are being replaced.” It is averred, also, that the loss of income cannot be told, for the reason that it is impossible to know in advance the patronage which may be secured, and that the defendant companies are insolvent. The motion to amend by filing the amended complaint was denied. Appellant assigns error in sustaining the objection to the introduction of evidence and in denying the motion to amend.

The original complaint did not state facts sufficient to constitute a cause of action. There is nothing in it to show that, at the time of commencing the action, the defendants, or any of them, were threatening to do any injury to the plaintiff, or that plaintiff at that time feared or believed that there was then existing danger; there is not any allegation of insolvency of any of defendants; there is nothing to show that great or irreparable injury will result from the execution of threats. Some of these points will be considered later in this opinion.

The objection to the evidence was properly sustained.

The important question in this case is this: Did the court below abuse its discretion in refusing leave to file the amended complaint? No appearance was made by respondent in this court. The transcript, the brief, and the argument of appellant's counsel all fail to point out on what particular ground the court refused leave to file. We therefore are forced to make a critical examination of the amended complaint, and considering what judicial discretion is, to determine, without aid of counsel, whether or not the court abused its discretion. It is not...