Cox v. St. Louis, Memphis & Southeastern Railway Co.

GOODE, J. (after stating the facts — 1. As to the special plea in bar that the entry on plaintiff’s land and removal of the sand therefrom was by Dittenhoefer under a contract by which plaintiffs gave him the right to do so, suffice to say that there was no proof to sustain this defense. Sullivan swore the arrangement with Cox for sand was made in behalf of Dittenhoefer and not of the railway company; but there is no testimony that Dittenhoefer removed the sand in controversy. The evidence on that issue shows without conflict that the railway company took or was a party, at least, to the taking of the sand. Whatever Dittenhoefer did in the matter was in connection with the Railway Company’s officials and was done to assist in the construction of the roadbed. In fact, though Dittenhoefer was a contractor for the construction of the railroad through plaintiffs’ land, he unquestionably took sand from plaintiffs’ farm outside the right of way to surface the roadbed, pursuant to an agreement which Sullivan assumed to have made with plaintiffs. 2. Complaint is made of the instruction to the jury, given at the instance of the plaintiffs, on the ground that it made the defendant company a trespasser if it entered on the plaintiffs’ land and removed sand without first obtaining the consent of both Cox and his wife; where'as it is said that Cox alone, as head of the family and in possession, would have the right to grant permission for defendant to enter and thereby prevent its conduct from being a trespass. An instruction of nearly the same language was before us on the first appeal. The one [364] now before ns will certainly bear the interpretation that if defendant entered without the consent of either Cox or his wife, it was guilty of trespass whether that was what the court intended to say or not. Defendant’s theory, as set forth in several instructions, is, that if it took the sand under any kind of a contract it was not a trespasser as against either plaintiff; a theory rejected by this court on the first appeal, when it was said, in effect, that Cox must have had some authority from his Avife in order to prevent the taking from being a trespass as against her. The questions arising on the instruction under review are, first, Avhether or -not, if Cox gave permission to take the sand Avithout any authority from his wife, there would be a trespass against her, entitling her to recover for the entire damage and, second, whether in this action in the joint names of her and her husband, a judgment for the entire damage can be sustained if he consented to the entry but she did not. Prior to the enactment of the statute of 1889, the common law rule in regard to estates in entirety prevailed in this State; and by that rule, during coverture, the husband had the absolute control of the property and could sue in his own name for possession or in trespass for its injury. Accordingly it was held that he was the only proper and necessary party to maintain an action for possession of an estate in entirety; though probably even then she would have been a proper party to join in an action for damage to the freehold. [Peck v. Lockridge, 97 Mo. 558, 11 S. W. 246; Smith v. Dryden, 79 Mo. 106.] A change was wrought in the law of estates in entirety, as in the other estates of married women, by the alteration of what is section 4340 of the Revised Statutes of 1899 in the revision of 1889, relating to married women. After said revision that section provided that the real estate belonging to a wife should be her separate property; and by section 4335, as construed by the Supreme Court, she became entitled [365] to sue in her own name without joining her husband, for possession of her real property. After the amendment of the present section 4340 in 1889, it was ruled by the Supreme Court that as the wife and husband were each entitled to the entire estate when the property was held in entirety, the wife might sue in her own name in ejectment to recover the whole of such estate and the rents and profits thereof, just as she might for any other separate statutory estate. [Bains v. Bullock, 129 Mo. 117.] This being so, she is entitled to sue in her own name for the whole damage done to the freehold by a trespasser who entered and disturbed the freehold without her consent. If Cox consented for the defendant to take sand, he personally would not have a right to recover for the removal of the sand. In that case the tort was exclusively against his wife. But if she is entitled to recover the whole damage, a judgment therefor in an action by both of them would not be error prejudicial to the defendant unless it is error to join the husband with the wife in such a case. It is true she might have sued in her own name without joining him; but was it error to join him? Both sections 4335 and 546 of the Revised Statutes of 1899, provide that a wife may sue at law and in equity with or without her husband being joined as a party, and the former section has been construed to embrace actions regarding her real estate. [Arnold v. Willis, 128 Mo. 145, 30 S. W. 517.] It follows that the removal of the sand without her authority entitled her to recover the whole actual damage in an action prosecuted either in her OAvn name or in the joint.names of herself and her husband. This being so, we cannot see hOAV the defendant will be harmed by the recovery in the present action in their joint names, as the judgment would bar any subsequent action by her or her husband. It is not asserted that defendant had direct authority from Mrs. Cox for the entry, but" only that the authority came through her husband as [366] representing her. If he had no authority to represent her a trespass was committed, and it was not reversible. error to tell the jury, in effect, that if defendant entered without the consent of both plaintiffs, it was liable in damages. It is to be borne in mind that this instruction AVas given on the inquiry regarding the assessment of single damages by the jury and not on the issue of whether the defendant acted without probable cause, which was determined by the court and another and independent declaration of law given. 3. The record shows that declarations were requested and given on the issue of treble damages and that the court passed on the facts relating to said issue and trebled the damages. This ruling is assigned for error, defendant contending that the evidence largely preponderated in favor of the theory that it entered under a contract. If this contention were correct, the question would arise whether the entry was under a contract which furnished probable cause for defendant to believe it owned the sand or had a right to remove it. As said above, we do not accept the proposition that any contract would suffice. However it was jor the court to pass on the issue of probable cause. The practice in this State in an action founded on the statute under consideration is for the court, after hearing the evidence adduced before the jury, to treble the damages if the jury finds a verdict for the plaintiff and no probable cause appears. This matter was considered by the Supreme Court in Walther v. Walther, 26 Mo. 143, wherein it was held that whether such practice was right or wrong, it had become the settled rule in this State and left the court the judge both of the law and the fact on the question of a defendant’s probable cause to believe the removal of part of the freehold was lawful. To the same effect are Rouse v. Wood, 57 Mo. App. 650; Brewster v. Link, 28 Mo. 147; Herron v. Hornback, 24 Mo. 492; Ewing v. Leeton, 17 Mo. 461; Le [367] Baume v. Woolfolk, 18 Mo. 514 and. Withington v. Hilderbrand, 1 Mo. 280. In Henry v. Lowe, 73 Mo. 100, it is said tbe burden is on tbe defendant to show that probable cause existed. Now in the present case, in dealing with tbe issue of probable cause, after tbe jury bad returned its verdict assessing tbe value of tbe sand taken, tbe court, at defendant’s request, declared tbe law to be that if defendant went on plaintiffs’ land and removed tbe sand, believing that tbe sand was its own, or that it bad permission to take tbe sand, then it would not be a willful trespasser, but liable only for single damages, and if tbe court found these facts existed, judgment for treble damages should not be given. This declaration shows tbe court accepted tbe defendant’s theory in regard to what would be probable cause, but declined to declare that tbe evidence showed tbe existence of probable cause and found tbe facts against tbe defendant. We are not well satisfied with tbe finding that plaintiffs were entitled to treble damages; but there is substantial evidence on tbe issue and as no error of law disregarding what was decided on tbe former appeal has been pointed out tbe judgment must be affirmed. All concur.