Reber v. Bell Telephone Company of Missouri
| Decision Date | 06 November 1916 |
| Citation | 190 S.W. 612,196 Mo.App. 69 |
| Parties | MARGARET M. REBER, Respondent, v. BELL TELEPHONE COMPANY OF MISSOURI, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Rhodes E. Cave Judge.
Holland Rutledge & Lashly for appellant.
(1) The court in giving a peremptory instruction to find for respondent in the sum of $ 1 committed no error of which respondent may complain, because while the testimony showed that some of the trimming of trees on respondent's property was done by linemen on the payroll of the appellant there was no testimony that such trimming was done under the direction of appellant. (2) The court in giving a peremptory instruction to find for respondent in the sum of $ 1 committed no error of which respondent may complain, because while the testimony showed that some of the trimming of the trees was done by linemen on the payroll of appellant and by linemen on the payroll of Suburban Electric Light & Power Company, there was no testimony to show what trimming was done by the linemen on the payroll of the former and what by linemen on payroll of the latter. Therefore, even had the said trimming been done by said linemen as employees of the respective companies, there was no testimony upon which a jury in any event could base a verdict against either company for substantial damages. Epperson v. Postal Telegraph Co., 155 Mo. 346, 382. (3) Even had the testimony shown that all the trimming of trees in question was done by employees of appellant under the latter's direction, respondent would not be entitled to recover, because the placing of telephone poles on a public sidewalk is not subjecting the property to any new easement, and therefore the abutting owner cannot complain of any resulting damage. Julia Building Association v. Bell Telephone Co., 88 Mo. 258. In the present case, there is a presumption that the City of Webster Groves, before causing its street commissioner to direct the removal of the poles and the trimming of the trees, had passed proper and necessary ordinances in reference thereto. Kavanaugh v. City of St. Louis, 220 Mo. 496; Chlanda v. Railroad, 213 Mo. 262; State ex rel. Brown v. Wilson, 216 Mo. 215; United Shoe Machinery Co. v. Ramlose, 210 Mo. 631; Chouteau v. Railroad, 122 Mo. 375; Bank of United States v. Dandridge, 6 Law Ed. Supreme Court Reports 62, 12 Wheaton, 552; Wyrick v. Railroad, 74 Mo.App. 406. (4) The court in giving a peremptory instruction to find for respondent in the sum of $ 1 committed no error of which respondent may complain, because there was no testimony of wilful or wanton conduct on the part of appellant.
C. A. Newton, E. W. Mills and C. S. Reber for respondent.
(1) In passing upon the propriety of the action of a trial court in taking a case from the jury by a peremptory instruction, the appellate court must consider the plaintiff's evidence as a whole in the light most favorable to plaintiff, indulging in every inference of fact in plaintiff's favor which the jury could with any degree of propriety indulge. Steffen v. Fisher, 161 Mo.App. 393; Scott v. Smelting Co., 187 Mo.App. 352; Whittaker v. Railroad, 252 Mo. 452; Harris v. Railroad, 180 Mo.App. 604; Perline v. Oil Co., 182 S.W. 1015. (2) The court rightly granted a new trial because of the error in its peremptory instruction given at the close of the plaintiff's case, confining plaintiff's recovery to one dollar, actual damages. The evidence introduced justified a recovery against appellant in a substantial sum on either of two theories: (a) Either as a joint tort-feasor engaged in the commission of a joint tort on the theory that the trespass committed by the two companies was in furtherance of a common purpose or object and concurrently committed. Yealy v. Fink, 43 Pa. 212; Ferguson v. Savoy, 9 New Bruns, 263; Powell v. Thompson, 80 Ala. 56; Swain v. Tennessee Copper Co., 111 Tenn. 430; Clark v. Newsan, 1 Ex. 131; Addison on Torts (8 Eng. Ed.), p. 118; Underhill on Torts (9 Eng. Ed.), p. 50; Murphy v. Wilson, 44 Mo. 313. (b) Or on the theory that appellant, as an individual trespasser, was liable only for the damages committed by its own linemen. When the uncertainty existing as to the extent of the damage inflicted by a particular wrongdoer is the result of his own act, he cannot complain if the jury is permitted to make the best estimate which the nature of the case admits of as to the damage done by such tort-feasor. Any other rule would encourage wrongdoing by favoring the wrongdoer at the expense of the innocent and injured party. Ogden v. Lucas, 48 Ill. 492; Railroad v. Hoag, 90 Ill. 339, 346; Schriever v. Village of Johnston, 71 Hun. (N. Y.) 232; Learned v. Castle, 78 Cal. 454; Washington v. Gillman, 64 Mo. 173; Jenkins v. Railroad, 67 N. J. L. 331; Whitney v. Welshaus, 50 Pa.Super. 427; Weidman Silk Dyeing Co. v. Newark, 84 A. 273; Harrison v. McClellan, 137 A.D. 513; Railroad v. Coons, 43 Ill.App. 119; Peltz v. Eichels, 62 Mo. 181; Scott v. Smelting Co., 187 Mo.App. 353. (3) (a) Even if the recovery was properly limited to merely nominal damages, the plaintiff was nevertheless entitled to a recovery of punitive damages. Favorite v. Cottrell, 62 Mo.App. 119; Lampert v. Drug Co., 238 Mo. 409. (b) The evidence introduced clearly justified the jury in finding that the trespass complained of was both wanton and malicious--wanton because unnecessary, and malicious because intentionally done with knowledge of its wrongful nature. It was unnecessary because the wires could have been maintained at the old thirty-foot level, at which level no cutting was necessary at all. Moore v. Carolina Light & Power Co., 79 S.E. 596; Van Siclen v. Electric Light Co., 45 A.D. 1. It was unnecessary because the wires, even if maintained at the new forty-five-foot level, could have been carried through the trees by cabling, and this method the company was bound to resort to although it might have involved additional expense. Van Siclen v. Electric Light Co., 45 A.D. 1. (c) It was a malicious trespass because at the time it was committed the company knew it had no right to cut the trees. The trespass being malicious, plaintiff's right to recover punitive damages is undeniable. Bright v. Bell, 113 La. 1090; Memphis Bell Telephone Co. v. Hunt, 84 Tenn. 459; Tissot v. Telephone Co., 39 La. Ann. 996; Cumberland Tel. Co. v. Cassidy, 78 Miss. 666; Cumberland Tel. Co. v. Shaw, 102 Tenn. 317; Daily v. State, 51 Ohio St. 348; Jones on Telegraph Companies, p. 120; Russellville Home Tel. Co. v. Commonwealth, 33 Ky. L. Rep. 132; Slago v. Realty Co., 183 Mo.App. 299; Smith v. Railroad, 192 Mo.App. 210; McMillan v. Elder, 160 Mo.App. 406; Jennings v. Railroad, 159 Mo.App. 17. (4) That a telephone company has no right to cut the limbs of trees standing on private property to clear a space for its wires without the owner's consent is also undeniable, in spite of the fact this appellant does deny it. State v. Graeme, 130 Mo.App. 138; McAntire v. Joplin Tel. Co., 75 Mo.App. 535; Reinhoff v. Electric Co., 177 Mo.App. 417.
This is an action to recover damages for injuries done to certain shade trees belonging to plaintiff, situated upon her property in Webster Groves, Missouri, abutting on the north line of Lockwood avenue, a public street extending from east to west in said city. It appears that certain telegraph poles of defendant had for years stood in Lockwood avenue near the northern edge of the roadway, i. e., somewhat south of the north curb; that Lockwood avenue was improved, necessitating the removal of these poles, and that defendant thereupon erected new poles north of the curb line. The old poles were about thirty feet in height, whereas the new poles erected north of the curb line were about forty-five feet in height. Plaintiff's trees--said to have been large, handsome shade trees--stood north of the curb line on plaintiff's land, but branches thereof extended beyond the sidewalk and curb into the street, and, it seems, interfered with the stringing of wires along these new poles in the manner in which defendant, for its convenience, proposed and desired to string such wires. Defendant did not obtain permission to cut the branches of these trees for the purpose of extending its wires through them, but on or about December 1, 1908, at a time when a caretaker in charge of the premises was absent, defendant's agents and servants entered upon plaintiff's premises and cut, mutilated and disfigured the trees, causing much damage thereto. And there is evidence that the work of removing branches from the trees was unskillfully done, causing unnecessary injury even for defendant's purposes.
It appears that wires of the Suburban Electric Light & Power Company, a corporation not a party to the suit, had been strung along and carried by the old poles, and were to be placed upon the new poles together with defendant's wires; that at the time of the alleged trespass aforesaid some servants of the last named company took part in cutting and removing the branches from the trees. It is said that some linemen of the Suburban Electric Light & Power Company, in charge of a foreman, happened to be passing at the time, and the foreman deemed it advisable to stop and assist defendant's agents and servants in the doing of this work. There is also testimony that one Safford, said to have been a street commissioner of the city of Webster Groves--who died prior to the trial below--was present giving orders and directions respecting the cutting of branches from plaintiff's trees.
At the close of the evidence the court peremptorily instructed the jury to return a verdict for plaintiff for nominal damages only, which the jury accordingly...
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