Little v. Cunningham

• Decision Date: 13 February 1906
• Citation: 92 S.W. 734,116 Mo.App. 545
• Parties: LITTLE et al., etc., Defendants in Error, v. CUNNINGHAM et al., Plaintiffs in Error
• Court: Missouri Court of Appeals

92 S.W. 734

116 Mo.App. 545

LITTLE et al., etc., Defendants in Error, v. CUNNINGHAM et al., Plaintiffs in Error

Court of Appeals of Missouri, St. Louis

February 13, 1906

Error to Knox Circuit Court.--Hon. E. R. McKee, Judge.

REVERSED.

STATEMENT.--The plaintiffs in error were the defendants in the court below. The bill prays an injunction against defendants, restraining them from maintaining a call bell and private telephone in connection with the main line of an unincorporated voluntary association owning a small telephone line for mutual convenience in Knox county. The facts substantially are that twenty-two farmers, one of whom is the present defendant John H. Cunningham, voluntarily associated themselves together and without being incorporated for that purpose denominated and styled their association "The Rutledge & Greenburg Telephone Company," the purpose and object of which was to erect and maintain a small neighborhood telephone line of about twelve miles in length; each member of the association, was to and did pay, on becoming a stockholder in the association, the sum of ten dollars. With this fund the line was constructed. About the same time a constitution and certain by-laws were adopted for the government of the association by the provisions of which the management of the company and its property was vested in three directors who were chosen and entered upon the duties of said office. They chose a president and secretary from among their number. By the constitution and by-laws it was provided that each stockholder of the concern was to have the right to connect a telephone in his residence with the line the member purchasing and owning such telephone, at an additional expense of about fifteen dollars each. Under this arrangement, defendant John H. Cunningham, as such stockholder, had installed in his home a telephone. The defendant, Logan Rule, owned no stock in the association nor had he any right to participate in the enjoyment and advantages of the telephone line. He was a neighbor and friend of Cunningham, however, and installed in his residence a telephone and by mutual friendly arrangement with Cunningham, ran a wire into the residence of the latter and by means of what is termed in the record a "call bell," his telephone was attached to the telephone maintained by Cunningham in connection with the main line. The theory of the defendant is that it was merely a neighborly arrangement whereby Cunningham and Rule and their families could have private communication and Mr. Cunningham would not be required to contract the additional expense in providing a different telephone for the neighborly line mentioned, the one instrument serving both lines. The result of this arrangement, however innocent the motive, was to provide Mr. Rule and his family connection with the main line, of which they took advantage by frequently holding conversations with others than their neighbor Cunningham along said line. The directors and a number of the stockholders of the association protested against this invasion of their rights but to no avail. On one occasion a committee representing the association called upon Mr Cunningham and sought to have him remove the call bell and disconnect what was known as the Rule line. This he declined to do. Some feeling was manifested on either side of the controversy and persuasive influence having failed to prevail, the board of directors were instructed to institute this proceeding and the suit is brought by the directors as trustees of an express trust on behalf of all of the members of the association. The bill alleges substantially the facts as stated with a greater degree of precision than is here necessary and alleges a violation of the rights of the association and its membership by reason thereof; irreparable injury, etc., that no adequate remedy at law may be had on account thereof, etc., and prays the court to grant injunctive relief to the effect "that the defendants may be perpetually restrained and enjoined from maintaining said line and connection of the said line of said Rule with the line of said association and that they may be compelled to remove said call bells and prohibited in the future from connecting the line of said Rule with the line of said association and that the said Rule be perpetually enjoined and restrained from the use of said line of said association and for such other and further relief as to the court may seem just and proper."

The answer was a general denial and on the 8th day of June and at the June term, 1903, of the Knox Circuit Court, the cause came on for trial. The court impaneled a jury and took its verdict upon certain material issues of fact, which were submitted in three several interrogatories pertaining to the merits of the controversy. The verdict was in the affirmative and found the facts as stated. Thereupon, without proceeding further, the cause was continued by the court to the December term, 1903, and at the December term, without a further hearing, the cause was continued by the court a second time until the June term, 1904. At the June term, 1904, on the 11th day of June, more than one year after the verdict of the jury aforesaid, the cause came on for further hearing before the judge and the defendants filed their amended answer raising several questions,...