46 Mo. App. 120 | Mo. Ct. App. | 1891
Lead Opinion
This is a suit in equity to enjoin the defendant from transmitting currents of electricity through certain wires which it has suspended in proximity to the telegraph wires of the plaintiff. At the hearing there was a decree denying the relief sought, and dismissing the petition as to a portion of the wires of the defendant, and granting the relief sought, in a modified form, as to the remainder. From this decree the defendant prosecutes this appeal.
The petition recites the incorporation of the plaintiff and its acquisition, under various acts of congress, and through its consolidation with the American Union Telegraph Company in pursuance of the laws of the state of New York, of the right to maintain its wires on any post-route, and pleads the act of congress of March 1, 1884, which makes all public roads and highways post-routes. It recites facts showing that a portion of Locust street, in the city of St. Louis, is a post-route within the meaning of this statute, and that that portion óf said street between Third and Fourth streets was, on of about the year 1880, occupied by the telegraph lines of the American Union Telegraph Company, which lines afterwards became, in pursuance of the consolidation already spoken of, the property of the plaintiff. It recites that the plaintiff had, for more than four years prior to the commencement of the suit, occupied and used those lines in its business as a telegraph company ; asserts its right to continue in the use of them free from interruption or disturbance ; recites facts showing the extensive character of the plaintiff ’ s business in transmitting messages to all parts of the United States, and the importance of such business, not only to individuals, but also to the public authorities of the city of St. Louis, the state of Missouri and the United States. It then states that more than fifty telegraph wires are
The petition then recites the incorporation of the. defendant for the purpose of supplying light by means; of electricity to persons in the city of St. Louis from its; premises on number 306 Locust street in said city describes the manner by which the defendant, for the-purpose of producing electric lights, generates by means, of dynamo electric machines, and transmits by means, of wires, powerful and intense currents of electricity.
The petition then states that within the four weeks; preceding the institution of this suit the defendant, erected three poles on the south side of Locust street,, one hundred and fifty feet apart from each other, and higher than the plaintiff’s poles, and has strung upon the poles thus erected six wires, four of them directly above, and two directly below, the plaintiff’s wires; that all of the defendant’s wires are connected with its dynamos, and are used for the transmission of powerful currents of electricity to various parts of the city.
The petition also states that wires, such as are strung between the defendant’s poles, are at all times liable to be broken, and that it frequently happens (owing to causes which are enumerated) that wires
The petition further states that the same result would follow in case the plaintiff’s wires broke and came in contact with the defendant’s wires strung immediately below them; that such accidents have repeatedly occurred and are dreaded by telegraph operators and repairers of wires, causing in many instances death and personal injuries.
■ The petition also States that the plaintiff has requested the defendant to either remove said wires, or else so place them as to avoid the dangers aforesaid ; but that the defendant refuses to comply with such request, and intends not only to continue the use of said wires in the manner aforesaid, but also to increase said dangers by placing additional wires on its poles for like purposes. The petition concludes with a prayer for an injunction restraining the defendant in the use of said wires for the purposes and in the manner aforesaid, and for general relief.
Due notice of the application for a temporary restraining order was given, and it was heard by the court on affidavits filed both in support and in opposition thereof, whereupon the court, upon the plaintiff’s giving bond in form and amount required, made a temporary restraining order, enjoining the defendant:
First. From transmitting any electric currents through its wires, strung below those of the plaintiff,
Second. From placing for the purposes of its business any electric light wires above those of the plaintiff, nearer than three feet to plaintiff’s wires.
Third. And ordering the defendant to place below its wires already strung some net work or sufficient guard to prevent its wires, in case of breakage or sagging, from coming into contact with the plaintiff’s wires.
An order to that effect was served upon the defendant. More than one month after service of this order upon the defendant, the latter filed its answer, accompanied by a motion to dissolve the injunction. The answer consists first of a general denial. It then recites the incorporation of the defendant for the purpose of manufacturing and vending electric light that its chief office and place of business was, and had. for some time been, at the southwest corner of Third and. Locust streets in the city of St. Louis. It states that ih order to supply its customers with light it became, was. and is, necessary for it to stretch its wires on poles,, erected, and tobe erected, upon and along the streets of' St. Louis between the southwest corner of Third and: Locust streets, the place where its dynamo machines-used in manufacturing said light were and are located, and the places of business of its customers where the light was and is supplied for the illumination and lighting of their places of business. It then recites the language of an ordinance enacted by the municipal assembly of the city of St. Louis on the fifteenth of March, 1884, numbered 12723, “regulating the placing of wires, tubes or cables conveying electricity for the production of light and power along the streets, alleys and public places of the city of St. Louis.” This ordinance, which is embodied in the answer, will not be
The answer then proceeds to state that the defendant applied to the board of public improvements for permission to erect its poles and stretch its wires on the north side of Locust street, which permission was denied ; that the defendant did obtain the permission of said board to erect its poles and stretch its wires on the south side of Locust street, and did so in strict conformity with the ordinances of the city, and the rules and regulations of the board, and under the supervision and control of the street commissioner; that its wires are stretched in the best practical way, are new and thoroughly insulated by asbestos and. fireproof material; that it is impossible for any of said wires to sag or sway so as to touch the wires of plaintiff, and that it is altogether improbable that any of said wares will break in any of the usual weather or condition of the elements in ’St. Louis.
The answer further states that, if said wires, or -either of them, should break asunder and fall so as to •come in contact with plaintiff’s wares, it would be harmless, as the fracture wrould necessarily break the current of electricity so that no damage would be done. The answer concludes with a prayer for a dissolution of the injunction, and judgment for costs.
The plaintiff replied, admitting the defendant’s incorporation as stated, and the enactment of the city Ordinance set out in the answer. The reply disclaimed information of the regulations of the board of public
It must be noticed in this connection that, while the defendant was fully advised both by the plaintiff’s petition and by the order of court that it had strung its wires both above and below those of the plaintiff, and was charged with the intention of not only continuing ■the use of its wires as thus strung, but also of stringing ■additional wires, regardless of any intervening space both above and below, the defendant did not disclaim ■either in its answer; or in the motion to dissolve, or, as far as the record shows, in the affidavits accompanying it, the intention thus charged.
Upon the final hearing the court modified the preliminary restraining order by removing the restraint as to defendant’s lower wires altogether. This decision was not placed on the ground that the operation of such wires, if continued, would be less dangerous to the plaintiff’s business or employes than the operation of the upper wires, but upon the sole ground that, prior to the institution of the suit, the plaintiff was advised that these wires were strung merely for a temporary purpose. The residue of the injunction, the court modified by ■enlarging the space which was to intervene between the defendant’s and the plaintiff’s wires, from three to ■eight feet. The injunction, as thus modified, was made perpetual.
The city of St. Louis under its charter has power to “ construct and keep in repair all bridges, streets, sewers and drains, and to regulate the use thereof” (Charter, art, 3, sec. 24, clause 2), and, also, to pass all such ordinances, not inconsistent with the provisions of the charter, or the laws of this state, as may be expedient in maintaining the peace, good government, health and welfare of the city, its trade, commerce and manufactures, and to enforce the same.” Clause 14. “The power to regulate theuse,” says Black, J., in Ferrenbach v. Turner, 86 Mo. 416, “is hot limited to amere right of way, but it extends to all beneficial uses which the public good and convenience may from time to time require, as for laying gas, water and sewer pipes, and the like. New uses are constantly arising. All these, and many others, may be made of the streets without the consent of the lot-owners. Private rights must yield to them.” In Julia Building Ass'n v. Tel. Co., 13 Mo. App. 477, we held that the dedication or condemnation of public streets in a city does not limit their use to the purpose of passways for persons and vehicles, but extends to every use' which may advance the public comfort and convenience within the legitimate sphere of municipal regulation. This decision was affirmed by the supreme court (88 Mo. 258), that court holding that “as civilization advances, new uses may be found expedient.” The first of these cases was the case of a licensee, and the last that of an adjoining owner. We are, therefore, justified in assuming that there is no substantial difference in principle between the case of a
If then the streets of the city of St. Louis may lawfully be subjected to the servitude which the defendant claims, the power to regulate such a use is directly conferred by the provision of the charter above quoted. The servitude which the defendant claims being a proper municipal use, it is equally evident that the power is properly exercised under the charter by the board of public improvements under the ordinance set out. Courts cannot undertake to exercise a general superintendence over this matter, because they possess neither the technical knowledge nor the knowledge of detail which the subject requires, and because the delays, which necessarily attend judicial proceedings, would of themselves furnish a conclusive argument against such exercise. When, therefore, the defendant has shown by its answer and evidence that it has erected its poles and wires in the places and manner prescribed by the municipal authorities, and that the purpose for which the same are used is a proper municipal use to which the street may be subjected, it has made a prima facie case that its occupation of the street to the extent and in the manner aforesaid is lawful, and it is upon the plaintiff to overthrow such case. All this, the defendant has shown by its answer and evidence.
We take these preliminary observations in view of the claim made in the plaintiff’s reply, that neither the city, nor any municipal officer thereof, had power to authorize the defendant to erect and maintain its poles and wires so as to interfere with the plaintiff’s rights under the acts of congress. If, by this claim, the proposition is sought to be asserted, that because the plaintiff has occupied the south side of Locust street between Third and Fourth streets with its telegraph wires, it could
The evidence shows that, at the time of the commencement of this action, plaintiff had on the south side of Locust street five telegraph poles, one at the corner of Third and Locust streets, one at the corner of Fourth and Locust streets, and three intervening ; that these poles-were not exactly the same distance apart, the distance varying from forty to sixty feet ;that, including the parts which were inserted in the ground, they were forty-one or forty-two feet in length ; that upon each pole there were four cross-arms, commencing fifteen or eighteen inches below the top of the pole, and. being placed at about that distance apart downwards; that there were eight pins-of w.ood on each cross-arm for the support of wires, four on each side of the pole ; and that on each there was-screwed a glass insulator to which a wire was fastened. To the cross-arms were attached more than fifty wires, employed by the plaintiff in the conduct of its telegraph business. This business consisted in transmitting by
After the plaintiff had placed these poles and wires thus in position and use, the defendant, acting under a permit procured from the board of public improvements, which was granted to it in pursuance of the ordinance set out in the defendant’s answer, and the regulations of the board of public improvements also there set out, — and after giving bond to the city in the sum of §20,000, as required by section 10 of the ordinance, — erected three poles on the south side of Locust street for the purpose of conducting electric light wires from its dynamos, which were situated in the basement of its building at number 306 Locust street. These poles were sixty feet- in length, and were inserted seven feet in the ground. The first was erected at the corner •of Third and Locust streets, and may be laid out of view, because no electric light wires were attached to it. The second was erected near the middle of the block, and near the defendant’s building, number 306 Locust street, and the third was erected on the corner of Fourth and Locust streets, a distance of one hundred and twenty-six feet west of the second. These poles were erected substantially in line with the poles of the plaintiff. They rose up through the plaintiff’s wires and extended upward much higher than the plaintiff’s poles. They were mortised for cross-arms,, the mortises beginning a foot below the top of the poles and running, with intervals of less than eighteen inches, three feet below the plaintiff’s lowest cross-arms. At the commencement of this action the defendant had stretched four wires from the second' of these poles, which stood near the middle of the block, westward to the third, which stood at the intersection with Fourth street. These wires were stretched on the highest cross-arm, and were fourteen or fifteen feet above the highest wire of the plaintiff. The defendant had also stretched two
The decree of the court, it will be perceived, relates entirely to such wires as the defendant may be supposed to have intended to stretch abone the wires of the plaintiff. As to those which were temporarily stretched below, and as to any which the defendant may be supposed to have intended to stretch below, the decree grants no relief. As to any wires of the defendant abone the plaintiff’s wires, the decree contains two prohibitions: First. Against extending any wires nearer to the plaintiff’s wires than eight feet. Second. Against maintaining any wires above the plaintiff’s wires, without placing thereunder a wire net work, or other safe and suitable guard, to prevent defendant’s wires from sagging or falling on the wires of the plaintiff, or coming nearer thereto than eight feet.
Touching the danger of actual contact by sagging, the defendant gave evidence tending to show that it was not its intention to string its wires closer than ten feet to plaintiff’s wires from above, and that, with wires strung at such distance, a contact by sagging is next to impossible. It was shown that the defendant’s-employes, as well as those of the city, were charged with a continuous duty of inspection, rendering such a contact highly improbable. In reply to the argument it may be said that as to defendant’s intention the plaintiff had a right to act on appearances, unless other-, wise advised, when it applied for the relief. The-defendant’s poles, as shown above, were mortised for cross-arms at close intervals where they passed through "the plaintiff ’ s wires. While such mortising may have been done rather in compliance with the regulations of the municipal board, than with any intention of actual use of the cross-arms which might be inserted for electric light wires, the answer makes no disclaimer of the-defendant’s intention to use them according to appearances. In view of the fact that no such disclaimer was made, the decree of the court, prohibiting the defendant from stringing its wires nearer than eight feet above those of the plaintiff, if tenable on other grounds, was warranted. It is not apparent how the defendant can complain of that part of the decree, since it simply gives a binding effect to its intention in that behalf. The question at most is a question of costs, which the
The danger of contact by breakage, as appears from the evidence, may be caused either by the defendant’s wires breaking and falling on those of the plaintiff strung below, or by the plaintiff ’ s wires breaking and falling on those of the defendant below. The latter is far more likely to happen than the former, since the plaintiff’s wires are of iron, of slight dimensions and subject to-rust, while the defendant’s wires are copper, are thoroughly insulated, and are thicker and stronger. While the danger of the breakage of the defendant’s wires is not excluded by the testimony, it is doubtful whether such a contingency is sufficiently proximate to warrant that part of the decree, which requires a net work or other-protection to be placed below the defendant’s upper wires to prevent their contact with the plaintiff’s wires in case of breakage. On that question, for the reason, hereinafter stated, we need express no opinion, as,, under the existing facts of this case, the question is not as to the form of relief actually granted, but as to whether the plaintiff was entitled to equitable relief by injunction’ at the date of the institution of the suit.
As to the results which would follow in case of a. breakage and contact between an electric light and a telegraph wire, the testimony is far from satisfactory. The expert testimony of the defendant tends to establish the theory that, if an electric light wire breaks, the current at once ceases to flow over it, unless the separate parts should fall so as to form two grounds;, that if both of the broken wires, not protected by the insulated covering, should touch the ground the current would continue to flow, but, if one end only should touch the ground, the only consequence would be the cessation of the flow of the current from the dynamo. The attention of a number of these witnesses was, on cross-examination, called to occurrences which were testified to by eye-witnesses, and which they could not
It is in this connection that, the plaintiff’s rights and. duties as fixed by law become material. The plaintiff is a carrier in the service of the public, and its duties as such are regulated by law and enforced by the severest penalties. It is answerable in these penalties for any neglect in the speedy and accurate transmission of messages intrusted to its care. The fact that such messages are delayed or inaccurately transmitted, owing to an interruption of the electric current over its own wires, by causes over which it has no control, may be a defense, but it is one which in many cases it would be impossible for it to establish to the satisfaction of the triers of the fact. The plaintiff, therefore, has a right to insist that a rigid protection of the 'law should be'
The argument has been advanced, and has been strongly pressed on our attention, that this .'danger to the plaintiff’s instruments and operators might be avoided by inserting a device known as a fusible plug* in the plaintiff’s wires, where the same enter into the plaintiff’s office. It is shown that such a plug melts if acted upon by an intense electric current, and that the plaintiff, by the insertion of such plugs, might guard against the danger of such intense currents passing by contact from the defendant’s wires over its own, and entering its offices to the danger of its instrumen fcs and employes. It is evident, however, that such a device, even if it accomplished all that the defendant claims for it, could be only a partial remedy. It might protect the plaintiff ’ s employes and instruments, but it would at the same time cause an interruption of the plaintiff ’ s business by severing its wires at every place where the plug has melted. We must add in this connection however that the equity rule, recognized in some of the states, that a plaintiff is not entitled to relief by injunction against a mischief, when he can guard against it at a slight expense, has not met with the approval of our supreme court. In Paddock s. Somes, 14 S.W.Rep. 749, that court approvingly cites the following passage from Wood on Nuisances [2 Ed.] 506 : “It is the duty of every person or public body to prevent a nuisance, and the fact that the person injured could, but does not, prevent damages to his property therefrom is no defense either to an action at law or in equity.” The trial court in that case instructed the jury that the plaintiff could not recover, if he could have prevented the injury by a reasonable exertion and at a trifling expense, and its
Our statute provides (R. S. 1879, sec. 2722): “ The remedy by writ of injunction or prohibition shall exist in all cases, where an injury to real or personal property is threatened, and the doing of any legal wrong what■ever, whenever in the opinion of the court an adequate remedy cannot be afforded by an action of damages.”
Judge Hougii in Carpenter v. Grisham, 59 Mo. 251, says that, even in respect of nuisances, “the modern ■doctrine of courts of equity is much more liberal than the ancient, and that the rule requiring the right to be first established at law prevails only where the right itself is in dispute, or is doubtful,” citing High on Injunctions, section 516. Judge Henry in State Savings Bank v. Kercheval, quoting the statute, says : “ Would .an action for damages here have afforded an adequate remedy, is the question, and not whether the threatened injury would have been irreparable.” In Overall v. Ruenzi, 67 Mo. 207, Judge Napton says : “Itis quite apparent that of late years, whether by reason of our statute in regard to injunctions first introduced in the revised code of 1865, or upon general grounds of expediency, this court has been disposed to regard with favor proceedings which are preventive in their character, rather than compel the injured party to seek redress after the damage is accomplished.” So in Parks v. People's Bank, 97 Mo. 132, Judge Barclay holds that the remedy by injunction exists, even though the plaintiff have a legal remedy, if the remedy is not as full and adequate as that afforded by injunction. In fact quite a number of decisions, both of the supreme court and of this court of late years, whether in view of our statute or for other reasons, have so extended the remedy by injunction, that decisions of English courts and those of other states are of very little value, in determining in what cases it does or does not exist.
As far as the questions involved in the proceeding-are concerned, they have been fully discussed in the opinion ; and, as far as the question of costs is concerned, which now seems tobe the only questionneeding ■adjudication, it is sufficiently disposed of by our holding, that the plaintiff was entitled to injunctive relief when the decree was rendered. Without committing ourselves to the propriety of the decree in all its parts, if it were still an issue in the case, we are of opinion that justice is best subserved by affirming it. Judgment affirmed;
Dissenting Opinion
(dissenting). — I agree with. much, of the reasoning of the foregoing opinion, but not with all of it; and I do not agree with its result.' My chief reason for not agreeing to the-result is that the holding, that the plaintiff: was entitled to any equitable relief in this case, sets a precedent for enjoining a large portion of the electric light wires in the city. For proof of this, we have only to use our eyes on almost any street, and especially in the business portion. My associates in their opinion disclaim an ability on the part of the courts to superintend the electric wires so as to prevent interferences, and yet they, render a judgment which in itself involves an exercise of such a jurisdiction ; and this upon two grounds : First. At the time when this suit was brought, the defendant had- strung two wares below the wires of the plaintiff, which are shown to have been intended for the mere temporary purpose of its display at the exposition. Second. That, although their wires, which were strung above the wires of the plaintiff, did not approach the plaintiff’s wares nearer than fourteen feet, yet, as the poles had notches on them, on which cross-bars might be placed and wires strung near enough to the plaintiff’s wires to constitute an interference, this made that part of the decree harmless to them, although they never intended to come within ten feet of the plaintiff’s wires, and although the reason why the poles were notched is fully explained by the evidence. A conclusion that will justify on these grounds a harassing litigation, involving the defendant in an interruption of its business and a large amount of costs, does not comport with my idea of equity. My idea is that, notwithstanding our statute relating to injunctions, the right to an injunction still remains a matter of justice and conscience, and that it is not a mere technical matter, like a common-law action of trespass. I also think that corporations are bound to the same offices of good neighborhood as individuals; and that one corporation ought not to be allowed to go
The view taken by my associates seems go involve a misapplication of the principles on which courts of •equity grant or refuse injunctions to restrain threatened injuries, such as those complained of in this case. The settled rule is that, if the act complained of is not a nuisance per se, but may or may not become a nuisance according to circumstances, and whether it will operate injuriously is uncertain or contingent, equity will not interfere by injunction until the question is settled at law. 3 Pom. Eq. Jur., sec. 1350; 1 High on Injunc., sec. 745 ; Kerr on Injunc., 340 ; numerous cases cited in 73 Am. Dec. 114. A few quotations from judicial decisions will better illustrate the scope of the rule. Lord Hardwicke, the founder of the present system of equity jurisprudence, expressed it thus: “Bills to*
The decree of the'court; it will be perceived, relates entirely to such wires as the defendant may be supposed to have intended to stretch above the wires of the plaintiff. As to those which were temporarily stretched below, and as to any which the- defendant may be supposed to have intended to stretch below, the decree has made a final disposition in favor of the defendant, and the plaintiff does not appeal. As to any wires of the' defendant above the plaintiff’s wires, the decree contains two prohibitions : ' First. Against extending any wires nearer to the plaintiff’s wires than eight feet. Second. Against maintaining any wires above the plaintiff’s wires, without placing thereunder a wire net-work, or other safe and suitable guard, to prevent defendant’s wires from sagging or falling on the wires of the plaintiff, or coming nearer thereto than eight feet.
It remains to inquire upon the evidence whether there is reasonable ground for apprehending that the defendant’s wires, although stretched above the plaintiff’s wires at a distance of ten feet or more, would, in consequence of accidental circumstances, be likely to come into contact with the plaintiff’s wires, or to come so near to them as to work substantial detriment to the plaintiff’s property or business. The dangers which the plaintiff apprehends are two-fold: First. The transmission of powerful currents of electricity from the defendant’s wires to the plaintiff’s wires by actual contact, in consequence of defendant’s wires sagging or breaking. Second. The disturbance of the electric currents upon the plaintiff’s wires by induction from the defendant’s wires. I shall speak of these elements of danger separately.
And, first, as to the danger of sagging. The evidence satisfies me that if, without breaking, one of the defendant’s wires should sag so low as to come in contact with one of the plaintiff’s wires, and if at the point of contact the insulating covering should be worn from
Secondly, as to the breaking. On this subject there is a general current of testimony in one direction. The sum of it is that, while telegraph wires frequently break, electric light wires have never been known to do so. No instance is given by any witness of the breaking of an electric light wire, while the testimony of the plaintiff’s witnesses is to the effect, that the breaking of their telegraph wires is one of their regular sources of trouble. The reason is found in the difference between
There is an. equal concurrence in the scientific testimony as to the consequences, which would follow in case of the breaking of one of the defendant’s wires, suspended above those of the plaintiff. An important difference between currents transmitted over telegraph wires, and those transmitted over electric light wires, consists in the fact that telegraph wires are “grounded,” as it is called, while electric light wires are not “grounded.” The testimony shows that electricity, if, as has been supposed, it is a substance, travels in a circuit, and if, as is supposed by some, it consists simply of a form of energy acting from one molecule of matter to another, aets in a circuit. In the case of telegraph wires, both ends are “grounded,” and the earth completes the circuit according to theory; but in the case of electric light wires, neither end is “grounded,” but the wire goes out, performs a circuit and returns to the dynamo, and the dynamo is not
But, even if the dangers which the plaintiff apprehends were probable, there is a general concurrence of expert testimony to the effect, that the injurious consequences apprehended from them might be prevented 'by slight ■ expense on-the. part of the plaintiffs in inserting in each of its wires, at or near the point where it enters any of its buildings or offices, what is known as a fusible plug. This is a simple device, consisting of a section of leaden wire or strip of lead, inserted in the circuit, which melts when the current passing through the circuit reaches a certain intensity, breaking the circuit, — -a result which would take place before the current would reach a sufficient intensity to burn a telegraphic instrument. The evidence shows that the cost of the fusible plugs would probably be four or five cents each, and that the cost of purchasing and inserting them in the fifty or more wires which pass over the plaintiff’s poles on Locust street would not perhaps exceed $5 or $10. In actions at law for damages it is a maxim constantly applied, that the plaintiff cannot recover damages for an injury which might have been prevented by reasonable care on
Thirdly, the evidence is even weaker as to any probable danger from induction. The plaintiff, in addition to its telegraph line, operates in the city of St. Louis a number of telephone lines. The evidence (including that adduced from the plaintiff) is to the ■effect, that the inconvenience from induction is greater in the case of telephone than in the case of telegraph wires. But the evidence puts it beyond all doubt that no danger of this kind is to be apprehended, either to any telephone wires which the plaintiff may see fit to
My original impressions upon this branch of the case have been confirmed by reading an opinion of Mr. District Judge (now Mr. Justice) Brown, in the case-of Cumberland Tel., etc., Co. v. Railroad, 42 Fed. Rep. 273, in which an attempt was made by a telephone-
I am, therefore, clear that the evidence affords no substantial ground for any relief by injunction against the defendant. I think that the judgment should be reversed, and the cause remanded to the circuit court with directions to enter judgment for the defendant.