Kinloch Telephone Co. v. City of St. Louis

• Citation: 188 S.W. 182,268 Mo. 485
• Decision Date: 05 July 1916
• Docket Number: No. 17572.,17572.
• Parties: KINLOCH TELEPHONE CO. v. CITY OF ST. LOUIS.
• Court: United States State Supreme Court of Missouri

188 S.W. 182

268 Mo. 485

KINLOCH TELEPHONE CO. v. CITY OF ST. LOUIS.

No. 17572.

Supreme Court of Missouri, Division No. 2.

July 5, 1916.

Appeal from St. Louis Circuit Court; W. B. Homer, Judge.

Action by the Kinloch Telephone Company against the City of St. Louis. From a judgment for defendant, plaintiff appeals. Judgment affirmed.

One Merritt recovered judgment for $4,000 as damages for personal injuries in a suit against both the parties to this suit. The telephone company paid that judgment with interest and costs, and sues herein for contribution. Defendant had judgment, and plaintiff has appealed. The opinion of this court on appeal in the Merritt Case is reported in 215 Mo. at page 299, 115 S. W. 19. Reference is made to the report of that case for such facts as are not herein stated.

In the latter part of September, 1901, the telephone company replaced an old pole with a new one at the intersection of Newstead avenue with Lucky street in St. Louis, with permission of the city. On February 5, 1902, Merritt fell into a hole at the foot of that pole and was injured. The petition in that case stated that the telephone company, in setting said pole in the street near the sidewalk, had negligently refilled the hole in which such pole was set in such manner that the earth around the pole sank, forming a hole dangerous to persons on the street, and that the telephone company knowingly and carelessly permitted said hole to remain without a guard or light and that the city knowingly and negligently permitted such hole to remain unfilled and unguarded. That petition then stated that by reason of such negligence Merritt fell into that hole and was injured.

The petition in this case alleges the beginning of the Merritt suit, sets out in hæc verba the body of the petition in that case, alleges that the defendants in that case filed separate answers therein denying the negligence charged and averring that Merritt's injuries were the result of his own negligence. The petition in this case then alleges the recovery of judgment by Merritt against both the defendants in that case, and the payment of the entire judgment by this plaintiff.

The answer herein states that said telephone pole was set by this plaintiff in a street of that city by permission of the city, under an ordinance which required that those who should erect such poles should restore the streets and save the city harmless from all loss, cost, or damage by reason of the exercise of the privilege of setting such poles. Such answer then alleges that the said hole at the foot of the pole was caused by the negligent filling of it by the telephone company, that said company negligently failed to refill said hole after it sank as aforesaid, and that the injuries suffered by Merritt were caused by such negligence of the telephone company.

The reply herein states that the telephone company with due care had refilled said hole at the time the pole was set and had thoroughly tamped the earth about such pole, and that such work was thereupon inspected and approved by the proper officers of the city; that the telephone company had no subsequent knowledge that the earth about the pole had sunk; that the city officers did have such knowledge, but failed to impart it to the telephone company. That reply then contains the following:

"That the defendant owed to the plaintiff a duty to notify the plaintiff of the existence of the said depression; but that neither the defendant herein nor any of its officers or agents did at any time impart its and their knowledge to the plaintiff, nor give to the plaintiff any notice of the existence of the said depression, as the said record in the said case did and does disclose. That the plaintiff herein had taken due care to refill the excavation about the said telephone pole and thoroughly to tamp the earth therein, as the record in the said case did and does disclose, and, after the inspection and approval thereof by the inspecting officers of the defendant herein, the plaintiff was under no obligation to keep the public street of the defendant city, on which the telephone pole was located, in a safe condition. Wherefore, the plaintiff prays judgment as in the petition.

"And for further reply the plaintiff alleges that the plaintiff and the defendant, codefendants in the said action instituted by the said Merritt, co-operated in the management of their cause, assisted each other in making their defenses, made substantially the same defenses, introduced substantially the same evidence, offered substantially the same instructions to the jury, and joined in the bill of exceptions and the appeals taken by them to the Supreme Court of Missouri; all of which is fully disclosed by the record of the said cause."

Neither the petition nor the reply herein contained any allegation that the hole at the foot of the telephone pole was caused otherwise than by the negligence of the telephone company.

On the trial of this case, the plaintiff introduced in evidence the record proper in the other case, showing the pleadings and judgment; also evidence tending to prove that the telephone company prior to Merritt's injury had no notice of the condition of the ground about said pole, and that the inspecting officers of the city did, prior to said injury, know of and report such condition to the city.

Plaintiff introduced a witness, V. B. Anderson, an assistant superintendent in charge of men engaged in setting its poles and offered to prove by him —

"that he had had charge of the work of replacing the pole at Newstead and Lucky with a new pole somewhat larger than the old; that in doing the work the regular and customary amount of tamping was done; that all of the earth taken out of the excavation was tamped back into the hole, and such surplus earth as was left (because the new pole was larger at the butt than the old pole) was heaped up about the pole to the granitoid sidewalk, which was about 20 to 24 inches back of the curbing; and that after the work was done the earth about the pole was higher than the sidewalk; that this witness had seen a certain wooden box covering a fire plug standing in close proximity to this pole, and also an outward opening on the other side of the pole at or near the corner of the said walk; and that, in the opinion of this witness, if a hole existed two feet deep on the 3d day of January, as reported by Officer Hannon on that day, such hole was occasioned by the seepage of water from a leak in this box."

That evidence was excluded.

The defendant herein introduced on the trial of this case the ordinance of the city requiring all persons and corporations after setting telephone poles to replace the streets in such manner as may be required by ordinance or by the board of public improvements and to the satisfaction of the street commissioner, and requiring that such persons and corporations shall give to the city penal bond in the sum of $20,000 with the condition that such person or corporation will comply with such ordinances and save the city harmless from any loss on account of any failure in that respect. It also introduced in evidence the bond executed by the plaintiff herein in accordance with those ordinances.

Plaintiff, in rebuttal, put on the stand Mr. E. T. Miller, an attorney at law, who was one of the attorneys for the Kinloch Telephone Company in the Merritt Case. He testified that, preparatory to the trial of that case, counsel for both the defendants therein held a consultation in which they came to a conclusion stated by the witness thus:

"That it would be suicidal for us to attempt to throw the burden — either one to throw the burden on the other, and that we had to make a joint fight in that case and combine our forces, and when we went to Mexico our position was stated to Mr. Robertson, and he fully concurred on that, and we carried out that theory in the trial of the case."

At the close of the evidence, the court gave the defendant a declaration of law as follows:

"The court, sitting as a jury, declares the law to be: That, upon the pleadings and proof herein, the plaintiff is not...