Hendrix v. Corning

• Decision Date: 16 June 1919
• Docket Number: No. 12868.,12868.
• Citation: 214 S.W. 253,201 Mo. App. 555
• Parties: HENDRIX v. CORNING et al.
• Court: Missouri Court of Appeals

214 S.W. 253

201 Mo. App. 555

HENDRIX v. CORNING et al.

No. 12868.

Kansas City Court of Appeals. Missouri.

June 16, 1919.

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

Action by Ferd Hendrix against George Corning and others. From judgment fox plaintiff, defendants appeal. Affirmed.

Paul D. Kitt, of Chillicothe, for appellants.

Schmitz & Marshall, of Chillicothe, for respondent.

TRIMBLE, J.

This is an action for damages on account of the death of plaintiff's two year old Percheron colt, caused by becoming entangled in the wire of a telephone line running along the public road close to the boundary of plaintiff's farm. This was a private line built and jointly owned by a number of men and used by them to obtain connection with the telephone exchange in the neighboring village of Avalon in Livingston county. The line had become old and badly out of repair, and, rather than fix the old one up, the owners built an entirely new line on the other side of the road, leaving the old line remaining where it was, in a dilapidated and tumble-down condition. The poles rotted off and fell or leaned over into plaintiff's pasture, and the colt's neck was caught therein, choking it to death.

At one time, William Banks, George Corning, Charles Howard, William McKerrow, the Rickenbrode estate, and possibly some others, were the joint owners of the telephone line. Homer Banks acquired the interest of William Banks, and then Homer, together with the other joint owners, constructed the new line to take the place of the old one.

The case originated in a justice court wherein plaintiff brought suit for $200 against George Corning, Charles Howard, William Banks, and William McKerrow. Said defendants took a change of venue to another justice, and there filed an answer, containing a general denial, and also setting up that "there is a misjoinder and nonjoinder of necessary and proper parties defendant." The plaintiff filed a reply in which he stated that, if there was a misjoinder of parties defendant, it was unknown to plaintiff, and that, if there were other persons who were necessary and proper parties, he did not know who they were and asked that the defendants make them parties.

A trial was had, resulting in a judgment for plaintiff against all defendants in the sum of $150. They appealed to the circuit court. On the first day of the first term of the circuit court after the appeal, the plaintiff, presumably acting upon the suggestion contained in the answer and the information learned in the trial before the justice, filed an amended petition which added three other defendants, to wit, Homer Banks, Webb Rickenbrode, and Charles Zirkle; but otherwise the petition was the same as before.

A trial was had in which the evidence showed that William Banks had no interest in the telephone line at the time the colt was killed, he having sold his interest to Homer Banks as hereinbefore stated; also, that the defendant Charles Zirkle was the switchboard man of the telephone exchange in Avalon, having no ownership in the joint telephone line past plaintiff's farm, and the only connection he had therewith arose by reason of the fact that all but one of the joint owners of the telephone line, after they had constructed the new line on the other side of the road, had given him the poles and wire of the old line if he would take them down.

The jury returned a verdict in favor of the defendant Zirkle, but found a verdict for $150 in plaintiff's favor against all the other defendants, including even William Banks, who according to all the evidence had no interest in the line at the time the colt was killed.

The trial court granted a new trial to Rickenbrode and Homer Banks, the two remaining defendants of the three that had been added by amendment in the circuit court, and also granted a new trial to William Banks, one of the original defendants, but allowed the verdict and judgment to stand as against the other original defendants, Corning, Howard, and McKerrow. Thereupon plaintiff dismissed as to William Banks, who had been shown to have no interest in the line, and also dismissed as to the defendants Rickenbrode and Homer Banks, who had been brought in by amendment after the case reached the circuit court. The three original defendants, Corning, Howard, and McKerrow, have appealed.

The first contention we shall dispose of is that the demurrer of these appealing defendants should have been sustained because the evidence conclusively shows that Zirkle, and not the other defendants, owned the old line at the time the colt was killed. The basis of this contention is the claim that, when the new line on the other side of the road was completed, the owners had given the old line to Zirkle, and therefore they were not liable to plaintiff. Without passing upon the question of whether, if the owners of the line had orally given it to Zirkle as an out-and-out gift which had been accepted in the same manner, this would absolve defendants from liability, we are of the opinion that there is ample evidence to support the view that the owners, except Rickenbrode, gave the old line to Zirkle in this way in order to get rid of the task of removing it themselves, and that the gift was not a completed gift until it was entirely taken down. The evidence shows that Rickenbrode, who had the Rickenbrode estate in charge, had reserved such interest, whatever that was, whether a certain portion or an undivided interest is not shown, and, although Zirkle had commenced at one end to take down the old line, yet, not knowing where the interest of the Rickenbrode estate was, he had quit, leaving the old line as it was. There was ample evidence to support the jury's finding that the defendants, and not Zirkle, were the owners of the line, and that his possession and ownership would not become complete until he had taken down the...