Layman v Southwestern Bell Telephone
554 S W 2d 477  [1977]
Author:- Sam Biers

Pleading- Affirmative Defenses; Responding to the Complaint (denial & affirmative D)

Relevant Facts: Pl, Lyman received title to 10.3 acres of land in 1956. In 1967 she conveyed a remainder interest to her son and daughter in a life estate.  In 1973 she saw some men and equipment digging across her property and destroying trees.  They had dug a trench about a foot wide and 3 ft deep.  The FMV was $35K, afterward it was $20K. By answers to interrogatories Df, Southwestern Bell admitted that it had employed Df, Wright Tree Service to install the wires on the property of Pl.  Df, Wright admitted installing the wires under K w/ SWB.

Legal Issue(s):   Whether Df SWB/Wright had the right of entry by easement as an affirmative defense to Pl’s action for trespass?

Court’s Holding: Yes, but affirmative D should have been plead in Answer

Procedure: Mo D. Ct Evidentiary Hearing : Pl objected to introduction of easement evidence; Ct dismissed Pl’s complaint for ‘insufficient evidence to establish the trespass pleaded and sought to be proved.”  MO Ct of App Reversed/Remanded

Law or Rule(s): Affirmative defenses shall be plead to a preceding pleading, which includes “any other matter constituting an avoidance or affirmative defense.”

Court Rationale: The TEST is whether the Df intends to rest his defense upon some fact not included in the allegations necessary to support the Pl’s case.  A general denial places in issue all of the material allegations contained in Pl’s petition necessary to support his claim and the Df is entitled to prove any fact which tends to show Pl’s COA never had nay legal existence.

If the Df has a defense in the nature of a confession of the facts of the Pl’s petition but avers that the Pl’s theory of liability even though sustained by the evidence does not apply to it b/c of additional facts which place Df in a position to avoid any legal responsibility for its action, then such defense must be set forth in his answer.  It is the obligation of the Df to affirmatively plead and prove matters in justification.  Pl’s objection to the introduction of easement evidence should have been sustained.

Plaintiff’s Argument: Dfs should not be allowed to introduce evidence of easement when Df SWB plead only general denial, not affirmative defense.  Easement is an affirmative D and Dfs failed to set out this D affirmatively.

Defendant’s Argument: Df SWB had received an assignment of easement originally executed by the owners prior to Pl conveyance, and Pl gave her permission to install the cable across her land.