Primm v. White

• Decision Date: 09 January 1912
• Citation: 162 Mo. App. 594,142 S.W. 802
• Parties: PRIMM v. WHITE et al.
• Court: Missouri Court of Appeals

142 S.W. 802

162 Mo. App. 594

PRIMM v. WHITE et al.

St. Louis Court of Appeals, Missouri.

January 9, 1912.

1. APPEAL AND ERROR (§ 1009)—EQUITY SUIT —REVIEW.

On appeal in equity, the court is required to determine the controversy under the evidence, irrespective of the conclusions arrived at by the trial court.

2. INJUNCTION (§ 189)—DECREE—SCOPE OF RELIEF.

Where, in a suit to restrain defendants from preventing complainant's connection with a telephone line, the issues were confined to defendants' acts as against complainant, the only possible judgment was one restraining defendants from cutting off complainant's use of the line; and hence a decree perpetually enjoining defendants from cutting and severing the wires and removing the posts and wires constituting the line was too broad.

3. PARTNERSHIP (§ 5)—CREATION—PRIVATE TELEPHONE COMPANY—PARTNERSHIP.

Where several rural residents contributed to the construction and maintenance of a rural telephone route, each maintaining its own connection with the line, the company was a voluntary association and not a partnership.

4. ASSOCIATIONS (§ 25)—DISSOLUTION.

Where rural residents organized an association to operate and maintain a rural telephone line, each member contributing to its construction and maintenance, the association was subject to dissolution at the will of any of the associates.

5. INJUNCTION (§ 37)—RIGHT TO RELIEF— ESTABLISHMENT OF RIGHT AT LAW.

Where a rural telephone association to which complainant belonged was dissolved and the line divided into several shares, and thereafter the owners of several of the shares reorganized and reconnected the line in such a manner as to leave complainant without connection, complainant was required to establish his right to connection and to use of the line at law before he could maintain a suit to restrain defendants from refusing his right to connections.

6. INJUNCTION (§ 17)—RIGHT TO RELIEF— REMEDY AT LAW.

Where complainant, in a suit to restrain his former associates from so reorganizing a rural telephone line as to deprive him of

connections, testified that his damage was inestimable, but afterwards fixed it at $500 in addition to the expense he had been put to for work and labor in constructing a portion of the line, he had an adequate remedy at law by suit for damages, and was not entitled to equitable relief.

7. INJUNCTION (§ 113)—RIGHT TO RELIEF— LACHES.

Where complainant, on June 29, 1908, was present at a meeting of the members of a rural telephone association, when they voted to dissolve, and he was notified on July 1st following that he would not be allowed to connect with the line as reconstructed, and as taken possession of by other members of the association, under the resolution passed at the meeting at which the old association was dissolved, but he took no legal action to restrain his associates from refusing him leave to connect with the line until December 16, 1908, his right to such relief was barred by laches.

8. EQUITY (§ 65)—RIGHT TO RELIEF—CLEAN HANDS.

Where, after complainant was deprived by his former associates of the right to connect with a rural telephone line, he delayed for several months to secure redress in equity, during which time he attempted on various occasions, and at the expense of the connection of other members of the association with the line, to cut into it and make his own connection, complainant was himself a wrongdoer, and did not come into equity with clean hands, and therefore was not entitled to relief.

Appeal from Circuit Court, Knox County; Chas. D. Stewart, Judge.

Suit by Thomas E. Primm against Thomas R. White and others. Decree for complainant, and defendants appeal. Reversed and remanded, with directions.

It appears that in the year 1901, plaintiff, in connection with some thirteen or fourteen of his neighbors, among them the four defendants in this case, obtained authority from the county court of Knox county to use a public road of the county in the construction of a telephone line from Edina, in the center of the county, to Colony, a town northeast of Edina, the line about sixteen miles long. As nearly as we can understand from the abstract and from the statement of counsel in the argument of the case before the court, the line as constructed ran out from Edina to the Plummer schoolhouse and then took off to the northeast to Colony. Plaintiff resided about six miles from Edina and ten miles from Colony. There do not appear to have been any articles of agreement, partnership or otherwise, drawn up, but the line was connected with what is called the "Colony switchboard," and conducted its operations under the name of Edina and Colony Telephone Company. In the construction of the line each of the parties to the agreement as well as, apparently, other citizens of Knox county, contributed either in money or labor, and each of the members of the association put in a telephone box and appliances at his residence and ran a line from there out to the main line. They appear to have kept up the whole line together, each contributing to a common fund for that purpose, until October, 1906, when they divided the line from Colony to the Plummer schoolhouse into twelve equal shares, each of the parties taking a share, that of plaintiff being the fourth share northeast of the schoolhouse, and each agreeing to keep the line up and in repair on his share, the association or company, as they called themselves, being given until the month of November, 1906, to put the line in good shape, keeping the wire twelve feet from the ground at the posts, and after that each member of the association was to keep his allotted part in good repair and if he did not repair two days after notice that it was out of order, the president was to be notified and he was to appoint a man to fix it up, and if the member of the association whose duty it was to repair it did not pay the expense incurred by the president in having it repaired, that member was to forfeit his share in the line, the company itself paying the expense. That part of the line between Edina and the Plummer schoolhouse was left as common property. The three sections or shares between that of plaintiff and the schoolhouse were assigned to three of the defendants, the share of the fourth defendant, Sweetman, apparently being north of that of plaintiff and between plaintiff and Colony. On May 21, 1908, the line appears to have broken and gone down and remained so from three to five weeks. It went down and broke on the sections belonging to either Thomas or M. W. White, two of the defendants, whose sections were south of that of plaintiff, but not adjoining him. About the 30th of June, 1908, plaintiff appears to have cut into the wire in some way so as to get his own wire into connection with the main line. To do this it appears that he had to cut off three of the defendants, namely, the two Whites and Mr. Galbrecht, members of the association living between plaintiff and Edina, so that they could not have any communication over the line with parties beyond plaintiff and on to Colony. In the meantime, that is on the 29th of June, the association held a meeting, at which apparently all of the members were present except a Mr. Snelling, the father-in-law of plaintiff, who lived north of plaintiff and who at the time was sick and who it was claimed was not notified of this meeting and was not represented at it. At this meeting it was voted to dissolve the association, each man taking out his share that had previously been assigned to him and that the portion of the line which had been undivided and which included the portion between the Plummer schoolhouse and the town of Edina, should be put up at auction and sold to the highest bidder for cash. This was forthwith done in the meeting and T. R. White, one of the defendants, who was also president of the association, bid a dollar for it. No one else bid any more and Mr. White testified that he had merely bid that amount to start it, but he being the last and the highest bidder, the unapportioned section was struck off to him for one dollar. It appears that the line was thereupon so constructed as to cut out the section which belonged to plaintiff and he was entirely disconnected with the line as newly arranged. The abstract is not very clear on this, but we gather from the statements of counsel at the argument before us that the line as reconstructed left the old line south of plaintiff, and looping around came back to the old line north of his section. At all events, as reconstructed, it entirely cut plaintiff off of the line. Whereupon plaintiff himself, about June 30th, connected his wire with the main line at the two points where it had been...