Reynolds County Telephone Co. v. City of Piedmont

• Decision Date: 03 January 1911
• Citation: 152 Mo. App. 361,133 S.W. 141
• Parties: REYNOLDS COUNTY TELEPHONE CO. v. CITY OF PIEDMONT.
• Court: Missouri Court of Appeals

133 S.W. 141

152 Mo. A. 361

REYNOLDS COUNTY TELEPHONE CO. v. CITY OF PIEDMONT.

Springfield Court of Appeals. Missouri.

January 3, 1911.

1. ESTOPPEL (§ 90)—TORTS—CONSTRUCTION OF PUBLIC IMPROVEMENTS—NEGLIGENCE.

Where the president of plaintiff telephone company saw the work going on from day to day of removing its cable from under the sidewalk by the city authorities in widening a sewer, and did not object thereto, it could not afterwards, in an action for damages, claim that the work of removing the cable was conducted in a negligent manner.

2. MUNICIPAL CORPORATIONS (§ 733)—TORTS —CONSTRUCTION OF PUBLIC IMPROVEMENTS —CARE REQUIRED.

Since the right of a telephone company to lay a cable in a city sewer was merely a license or privilege, the city was not liable as an insurer thereof in removing the cable in widening the sewer, but was only required to use ordinary care not to negligently injure the cable.

3. MUNICIPAL CORPORATIONS (§ 90)—RESOLUTIONS OF COUNCIL.

Where only two of the four members of the board of aldermen of a fourth-class city were present when a resolution was adopted permitting a telephone company to lay a cable in a sewer, the meeting was illegal, so that the resolution was not binding upon the city; the fact that the mayor was present not making a quorum, since, by the direct provisions of Rev. St. 1899, § 5899 (Ann. St. 1906, p. 2992), he cannot vote except in case of a tie vote.

4. MUNICIPAL CORPORATIONS (§ 733)—TORTS —CONSTRUCTION OF IMPROVEMENTS—NEGLIGENCE.

Where a telephone company laid its cable under a street, without obtaining the city's consent as required by statute, the city was not liable for damage to its cable by its being struck by a pick of one of the city employés, attempting to loosen the rock and cement to remove the cable in repairing the sewer, where it appeared that the injury was caused either unintentionally or by the city employé's failure to carefully guard the point of his pick; the city not being liable unless it willfully or recklessly injured the cable.

5. EVIDENCE (§ 245)—ADMISSIONS—PUBLIC OFFICER.

A statement by a deputy street commissioner, made after plaintiff telephone company's cable had been injured by the city employés in removing it to repair a sewer, that he expected the city had furnished him incompetent men to do the work was not admissible in evidence in an action against the city for damage to the cable, being by an officer not authorized to bind the city by his declarations.

Appeal from Circuit Court, Wayne County; Joseph J. Williams, Judge.

Action by the Reynolds County Telephone Company against the City of Piedmont. From a judgment for defendant, plaintiff appeals. Affirmed.

James F. Green and Ernest A. Green, for appellant. J. F. Lindsay and John H. Raney, for respondent.

GRAY, J.

The city of Piedmont at the times hereinafter mentioned was a city of the fourth class, in Wayne county. The plaintiff at such times was a corporation organized under the laws of this state, and engaged in operating a system of telephones in said city and vicinity. The petition alleged that the city had granted plaintiff permission to establish and operate its system within its borders, and that in pursuance of said permission, plaintiff had laid a certain cable, containing divers wires connected with its telephones, in various parts of the city, in a certain sewer or ditch on the southern side of a public street in said city. It was alleged that such cable had been maintained by the plaintiff in said sewer ditch from the ____ day of June, 1903, to the 23d day of July, 1908.

The negligence charged in the petition is as follows: "That about the 23d day of July, 1908, defendant, without the knowledge or consent of the plaintiff and without giving plaintiff any notice of its purpose to interfere with plaintiff's wires, did, by its agents, employés, and servants, wrongfully, carelessly, and negligently cut into, puncture, and dig up said cable, and destroy and ruin the leaden pipe inclosing said wiring, severing and destroying many of said wires and said cable, thereby rendering all of said wires unfit for use and preventing the plaintiff from supplying telephonic communication to any of its patrons theretofore supplied through said cable until another cable could be procured and laid." The answer was a general denial. The cause was tried at the February term, 1909, in the Wayne county circuit court, and after hearing the evidence, the court directed a verdict for the defendant. Thereupon judgment was entered, and plaintiff appealed.

The evidence tends to show that on the 2d day of June, 1903, the board of aldermen of the city of Piedmont, at a meeting when only two aldermen and the mayor were present, adopted the following resolution: "It was then moved and carried that the Reynolds County Telephone Company be granted a permit to lay a 75-pair lead...