Putnam v. Coates

• Citation: 283 S.W. 717,220 Mo.App. 218
• Parties: RALPH PUTNAM, APPELLANT, v. W. L. COATES ET AL., RESPONDENTS.
• Decision Date: 22 April 1926
• Court: Court of Appeal of Missouri (US)

283 S.W. 717

220 Mo.App. 218

RALPH PUTNAM, APPELLANT, v. W. L. COATES ET AL., RESPONDENTS.

Court of Appeals of Missouri, Springfield

April 22, 1926

Appeal from the Circuit Court of Jasper County.--Hon. Grant Emerson Judge.

AFFIRMED.

Judgment affirmed.

T. C Tadlock and McReynolds & Blair for appellant.

Morrison Pritchett, Owen & Davis and W. R. Robertson for respondents.

BAILEY J. Cox, P. J., and Bradley, J., concur.

OPINION

BAILEY, J.--

This is an injunction suit to restrain defendants from entering a certain park in Jasper County known as Lakeside. A temporary writ was issued August 18, 1924. The cause was tried on its merit and judgment entered dissolving the injunction on January 31, 1925, from which judgment, plaintiff has appealed.

The evidence indicates that Lakeside Park, consisting of approximately 100 acres, is owned by the Southwest Missouri Railroad Company. In May, 1924, said company leased this park to plaintiff for a period of one year with option to renew said lease from year to year for a period of five years. After obtaining the lease, plaintiff went into possession and has since that time operated the park as a place for public amusement and pleasure. This part has been in existence for some twenty-five years and during that period has been a popular resort where admission to the grounds was open to the public without charge. Defendant W. L. Coates had acted as a police officer at the park for about seventeen years and until this controversy arose. Part of the time he had a commission as deputy constable of the township in which the park was situated and at other times had held a commission as deputy sheriff of Jasper County all for the apparent purpose of vesting him with proper authority to make arrests and keep the peace. After taking possession of the park, plaintiff employed defendant W. L. Coates to continue to act as an officer at the park for the season of 1924. At that time plaintiff evidently considered him an officer with a deputy constable's commission.

It also seems that during all these years defendant, Mrs. W. L. Coates, wife of the said W. L. Coates, had enjoyed the privilege of checking wraps, baskets, etc., in the dance pavilion at the park. Plaintiff entered into a verbal agreement with her by which he granted to her the privilege of "checking" for the season of 1924, by the terms of which, she was to pay plaintiff fifteen per cent of all moneys received. Defendant, Mrs. W. L. Coates, contends that she had the right to check at all dances except small private party dances, while plaintiff contends she had the privilege only at regular dances which occurred twice each week. Later, on demand of plaintiff, the contract was changed so that plaintiff received 50 per cent of all receipts obtained by said defendant from checking. Trouble arose over the fact that said defendant put a padlock on the checking room apparently to enforce her rights to the checking privileges at all dances, which rights were being denied by plaintiff. As a result of this altercation, plaintiff discharged both of defendants about August 7, 1924, and on August 11th, filed a petition for a temporary writ of injunction restraining them from entering the park. It is well to note here that the petition charged that "since their discharge, defendants enter the park at divers times while patrons of the park are there and by their conduct, talk and behavior, seriously interfere with the business of the park" and that W. L. Coates has stated to concession managers that "he proposes to close down the park, to padlock the concessions and to close everything up, all of which tends to deter patrons from returning to the park and has, and if continued will, seriously interfere with the business of said park and of this plaintiff." The petition then alleges that the acts complained of will cause plaintiff irreparable damage and that he has no adequate remedy at law.

The evidence in relation to the acts complained of in the petition was given by plaintiff and several concession holders. The gist of this evidence was to the effect that defendant Coates criticized the management of the park and predicted that the park would be closed; he stated to Mr. Sturgis that he believed it would "be under lock by tomorrow morning;" there was some testimony that he threatened to close the place himself by virtue of his authority as an officer. He also threatened to arrest plaintiff if he bothered defendant's wife in regard to the checking privileges. These witnesses, in response to a question as to whether the talking of Mr. Sturgis had hurt their business, either answered in the negative or refused to state positively. In so far as defendant, Mrs. W. L. Coates is concerned, we find no evidence in the record that she made any remarks whatever about the management of the park or plaintiff, except the testimony of plaintiff himself in which he names neither time nor place.

As heretofore stated, the petition for temporary injunction was filed August 11, 1924, and the temporary injunction granted August 18, 1924. When the petition was filed, defendant Coates was believed by plaintiff to be a deputy constable and he so stated. On the very day and just prior to the granting of the temporary injunction, the constable, M. Passley, at the solicitation of plaintiff, revoked the commission of defendant W. L. Coates and thereupon commissioned plaintiff as deputy constable. In relation to this point, the constable testified that plaintiff "told me the case would be over with and everything would be settled if I would take Mr. Coates' commission; they would get along all right and save costs."

"Q. In other words, they said the case was on trial and if you would take Coates' commission it would settle everything and everything would be straightened up?" A. "Yes, sir."

Plaintiff's counter-affidavit, filed on the day of the hearing on the application for the temporary writ, likewise states that defendant's commission as deputy constable "has been this day revoked and terminated by M. Passley. " On the 19th day of September, 1924, defendant W. L. Coates was reappointed deputy constable and held a commission as such when this cause came on for trial on the merits in January, 1925.

Plaintiff charges that the judgment of the court dissolving the injunction is against the law, against the evidence and is for the wrong party. Great stress is laid on the case of Sharp v. Whiteside, 19 F. 156. Plaintiff in that case evidently owned considerable land at the top of the famous Lookout Mountain in Tennessee, which land she had enclosed and charged admission to those who desired to enter. She claimed the right to refuse admission to those who were not brought to the park by a particular transportation company with whom she had a contract. No public use had ever been impressed upon her lands either by the Legislature of...