Nichols v. New York & Pennsylvania Telephone & Telegraph Co.

Kruse, J.: The defendant gave no evidence upon the trial, but rested upon the case made by the plaintiff. It challenges the sufficiency of the evidence to award any verdict against it, and also contends that evidence was admitted against its objection and exception, which constitutes error so prejudicial to it as to require the reversal of the judgment entered upon the verdict. We are of the opinion that the evidence sustains the verdict, and that even if some of the evidence was incompetent, it may be disregarded as harmless, and the judgment upheld. As appears by the answer of the defendant, it claims the right under the contract of December, 1905, to enter upon the premises mentioned in the complaint for the purpose of erecting and main taining poles, wires and necessary fixtures, and trimming and cutting trees necessary to clear the wires. It further alleges in its answer that in consideration of the sum of ten dollars, paid by it to the plaintiff for said right, the plaintiff fully discharged and released it from any and all liability for the erection of, poles, wires and fixtures and trimming and cutting said trees. Plaintiff admits the making and execution of the writing of December, 1905. The undisputed evidence shows that in December, 1905, one Freeman, assuming to act for the defendant, entered into negotiations with the plaintiff to permit the defendant’s telephone line to cross his premises. The plaintiff’s premises consisted of a dwelling house and lot in the city of Hornell, with a row of shade trees in front of the house, near the margin of the street. At the time of the negotiations and the execution of the paper there were poles near the plaintiff’s premises, but not set up. The poles were at least seventy feet long. Freeman called plaintiff’s attention to the poles, saying that they had brought exceptionally long poles to bring the wires above the trees, where there would be no damage to the trees; no trimming, only small limbs on the top, to be done with pruning shears. The defendant’s counsel specifically objected [187] to the statement of Freeman as to what length of poles would be set and what soft of trimming would be done by the defendant, upon all the grounds which he had theretofore stated, and upon the further ground that the statement tends to limit, modify and vary the rights granted under the agreement, and limits it to a certain kind of pole, certain kind of trimming, etc., and moved to strike out the statement. The motion was denied and an exception taken. The plaintiff, further testified that he was told there would be but one cross-piece put on the poles; that it might be necessary to put on an extra one, and that the pole would be set up the hill far enough so that he (Freeman) would have to trim only one tree; that he told Freeman that rather than have any trouble or fight about it, or to go to law, he would let them go through; that Freeman said they would give him ten dollars, which he accepted, and signed the paper. Ten feet were cut off the small end of the poles which were lying near the premises. The plaintiff asked Freeman what they meant by cutting the pole off, and he replied that it was necessary because the pole was higher than the other poles ; he could not hold it up; that if he set the pole higher up the bank it would practically bring the wire above the tree and would necessitate no more trimming than if set lower down the bank. When the poles were put in position they were placed four feet lower down the bank than the plaintiff was told they would be placed. Here is what was done in trimming the trees. I quote from the plaintiff’s testimony: “ These men came there and climbed up the tree where they could get at it handy and sawed off the limbs on the largest tree; the biggest branch was cut off 16 foot and four inches from the wires; the other branch cut off 15 foot, and the next tree they cut off 12 foot and ten foot from the wires; on the smallest tree up in the yard near the house they trimmed cleared the wires 13 feet.” Plaintiff further testifies that the limbs were from four inches and a half to five inches in diameter; that the limbs were cut where they branched off the tree, and that when they took off one limb they took off about twenty. The trees were so mutilated as to lessen the value of the premises from $150 to $200. That is shown by the undisputed testimony. The jury found a verdict for the sum of $140. While there is no evidence showing that Freeman was specifically authorized by the [188] defendant to make the agreement, jet the circumstances are such as to show that the defendant ratified the same. The plaintiff was entitled to recover all the damages sustained by the cutting of his trees, except to the extent that the defendant had the right to cut them, and it was incumbent upon the defendant to establish that right and to exercise it in a reasonable manner. I am unable to see why it was necessary to cut the branches as was done. The wires were to be cleared but eighteen inches. If it was necessary the defendant should have made that fact to appear. The instrument under which the defendant claimed this right is entirely silent as to the precise location of the poles, their height, or the manner or particular place of crossing the plaintiff’s premises. As bearing upon the matters respecting which the writing is silent, and also upon the question of the reasonable use of the right given to the defendant, I think it was competent to supply and supplement the writing by oral proof of the surrounding circumstances. (Dexter v. Beard, 130 N. Y. 549, 556.) While it is possible that some, of the oral testimony docs not fall within the rule permitting parol evidence to be given to supply an obviously incomplete agreement, still, in view of the uncontradicted facts, no prejudicial error was committed in receiving the same. It is contended that the defendant had the right under the written contract to put up as many cross-arms as were necessary, and that the statement of Freeman that but one, or at most two, would be put up was at variance therewith. Assuming that to be true, I fail to see how the evidence could do any harm since there was but one cross-arm put up. While it is true, as is suggested, that there is no dispute that the poles were erected and the line run through the plaintiff’s front yard, as was talked between the plaintiff and the defendant, it is also true that they were not erected in the precise place where it was agreed they should be placed, but about four feet lower down the bank, thus lowering the wires beyond what it was contemplated they should be. It is also contended that Dixon, the defendant’s district superintendent, had no authority to make the statement that the plaintiff was entitled to more than ten dollars damages for cutting the trees. Assuming that to be true, how could it do any harm, in view of the undisputed evidence showing that the plaintiff actually sustained damages to the extent of $150 to $200 ? [189] There are other bits of evidence which might be singled out as incompetent, but none which we think would justify reversing the judgment. Not only were the poles shortened ten feet, but they were put four feet lower down the bank, and the trees were trimmed from ten to sixteen feet from the wires. These circumstances were permitted to go unchallenged and unexplained by the defendant, and no proof was given to contradict the evidence showing that the value of the premises had been injured by the cutting of the trees to the extent of §150 to §200. The case of Barber v. Hudson River Telephone Co. (105 App. Div. 154), relied upon by the appellant, we think is not -at variance with the views which we have expressed. The question here urged, that the oral testimony contravenes the writing, was not presented in that case. There was no question as to the location of the poles, their height, nor the manner or place of crossing the premises, as in this case. What was complained of there was the adding of additional cross-arms; and upon the bare writing itself it was held that the telephone company had the right to add additional cross-arms if it was necessary for the purpose of conducting its business, and the action was tried upon the theory that the defendant was a trespasser db initio, and had no right whatever to cut the trees. Such is not the claim here. The plaintiff contends that it was not necessary to cut these trees so as to harm them, and the evidence supports that claim. In view of the nominal sum paid and the other circumstances in this case, it is quite' apparent that under the terms of the contract it was contemplated that the defendant would do no substantial injury to the-trees. In that view the proper measure of damages was adopted, namely, the difference between the value of the property before and after the trees were cut and mutilated. (Evans v. Keystone Gas Co., 72 Hun, 503; affd., 148 N. Y. 112.) We think, upon the undisputed facts, the plaintiff was entitled to recover. The judgment should be affirmed, with costs. All concurred, except McLennan, P. J., who dissented in an opinion.