Keener v. Black River Elec. Co-op.
| Decision Date | 13 June 1969 |
| Docket Number | D,No. 33161,CO-OPERATIV,33161 |
| Parties | George C. KEENER and Edna M. Keener, Plaintiffs-Appellants, v. BLACK RIVER ELECTRICefendant-Respondent. |
| Court | Missouri Court of Appeals |
George A. Adolf, St. Louis, for plaintiffs-appellants.
Roberts & Roberts, Farmington, for defendant-respondent.
This appeal comes to the writer upon reassignment. It results from the trial court's action sustaining defendant's motion for judgment filed immediately after the jury was sworn and prior to the opening of plaintiffs' case.
Before ruling on that issue we are confronted with defendant's motion to dismiss this appeal on the ground plaintiffs' brief is in violation of Civil Rule 83.05, V.A.M.R. Plaintiffs' brief comprises only a borderline compliance with the rule, but since it does comply the motion should be overruled.
Plaintiffs' action was in tort for trespass alleging ownership of Lot 2, Highway D, Cameron Resort Area; that defendant 'with force and arms' cut down and destroyed approximately forty-four trees of the value of $5,000.00 in which defendant had no interest or right and which were standing 'on land not defendant's own, contrary to the form of the statute in such cases made and provided'; and that to remove the cut trees plaintiffs were caused to expend money and labor, and to remove the stumps will in the future be required to expend a total of $1,000.00. The prayer was for $6,000.00 'and that the Court treble' this amount.
The answer was a general denial and the allegation it was the owner of a right-of-way easement covering Township 33 North, Range 6 East, Section 7 in Madison County, Missouri. Immediately following the selection and swearing of the jury, defendant filed a 'Motion for Judgment' and asked to be heard upon that motion. This motion set forth the failure of plaintiffs to deny defendant's ownership of a right-of-way easement over the land upon which the trees were located and that plaintiffs had made no attack upon the validity of the easement. The motion alleged the existence of the easement was therefore admitted, stating: '* * * the defendant is entitled to a directed verdict because the issues herein involved are resolved in the pleadings.'
During the argument on the motion the right-of-way easement pleaded in defendant's answer was introduced into evidence as was a portion of the depositions of the plaintiffs. From these it can be determined the trees were cut on land lying within the description on the right-of-way easement and the easement was executed prior to the cutting of the trees.
At no time during the proceedings in the trial court or on appeal have plaintiffs made any attack upon the easement or the admissions contained in their depositions. Evidence also established defendant used a distribution line erected on this easement to serve other consumers in the general area of plaintiffs' land who did not have other electric service and in order to do so one new pole and two additional anchors were to be installed.
The pertinent part of the easement reads as follows
During its colloquy with counsel following presentation of the motion the trial court stated: 'And, under the law in the McIntosh case the Court feels obligated to sustain the motion.'
Plaintiffs present two allegations of prejudicial error. First, they contend the trial court erred in sustaining defendant's motion for the reason they should have been allowed to show defendant cut trees which did not '* * * interfere with or threaten to endanger the operation with maintenance of said line or system' and thus were acts beyond the powers granted defendant by the easement.
There is no doubt both defendant and the trial court considered defendant's motion as one for judgment on the pleadings. Defendant titled it as a 'Motion for Judgment' and in the last paragraph of the motion gave as its reason: '* * * because the issues herein involved are resolved in the pleadings.'
Where an issue of fact is presented by the pleading a motion for judgment on the pleadings should be denied. Hall v. Missouri Ins. Co., Mo.App., 208 S.W.2d 830; Helmkamp v. American Family Mutual Insurance Co., Mo.App., 407 S.W.2d 559. The reason for such a rule is twofold. First, that by moving for judgment on the pleadings an adversary in effect admits the facts well pleaded by his opponent (Midwest Game Co. v. M.F.A. Mill Co., Mo., 320 S.W.2d 547; Leggett v. General Indem. Exchange, 363 Mo. 273, 250 S.W.2d 710). Secondly, from the fact the real position of a party moving for judgment on the pleadings is similar to that taken by a movant on a motion to dismiss; i.e., assuming the facts pleaded by the opposite party to be true, these facts are nevertheless insufficient as a matter of law. Gempp v. Teiber, Mo.App., 173 S.W.2d 651. The whole question is whether the moving party was entitled to judgment as a matter of law on the face of the pleadings. Bruce v. City of St. Louis, Mo.App., 217 S.W,2d 744. See also § 509.360, RSMo 1959, V.A.M.S.; Civil Rule 55.39, V.A.M.R.; and cases collected in Mo. Digest, Pleading, Keys 350(3), 343. Was there an issue of fact presented by the pleadings or was defendant entitled to judgment as a matter of law on the face of the pleadings? Defendant's...
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