City of St. Louis v. Maryland Casualty Co.

• Citation: 122 S.W.2d 20
• Decision Date: 06 December 1938
• Docket Number: No. 24594.,24594.
• Parties: CITY OF ST. LOUIS v. MARYLAND CASUALTY CO. et al.
• Court: Court of Appeal of Missouri (US)

122 S.W.2d 20

CITY OF ST. LOUIS v. MARYLAND CASUALTY CO. et al.

No. 24594.

St. Louis Court of Appeals. Missouri.

December 6, 1938.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be published in State Reports."

Action by the City of St. Louis against the Maryland Casualty Company and another on a surety bond. Judgment for plaintiff for $750 on one count and for $86.25 on another count, and defendants appeal.

Reversed and remanded with directions.

Wm. J. Becker and J. C. Hopewell, both of St. Louis, for appellants.

E. H. Wayman and Harold C. Hanke, both of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action on a surety bond.

Plaintiff, on July 15, 1933, issued to defendant Tuley a permit to use the south 150 feet of the improved wharf between Sidney and St. George Streets, the south line of said improved area being about 50 feet north of St. George Street, and to anchor at said wharf one 130 foot landing barge for use in furnishing sand for construction of the Federal office building at Twelfth and Market Streets, in the City of St. Louis.

Said permit provides as follows:

"That for the privilege herein granted the permittee shall pay to the City of St. Louis monthly, in advance, the sum of twenty-five dollars; that before availing himself of the privilege herein granted the permittee shall file with the Director of Streets and Sewers a penal bond in the sum of $1,000 approved by the City Counselor as to form and by the Comptroller as to security, conditioned that said barge shall at all times be good, safe and seaworthy and that in case of the sinking of said barge from any cause the said barge, or wreck of the same, shall be removed forthwith from the landing at the expense of the permittee so that it shall offer no obstruction to the harbor; that the said barge and stages appurtenant thereto shall at all times be left in a safe condition and satisfactory to the Street Commissioner; that the permittee is bound hereby in the acceptance of this permit to keep harmless the City of St. Louis from all damages which may be sustained by it and all claims which may be made against it by reason of any injury to person or damage to property resulting from anything done in connection with the exercise of the privilege herein granted; that this permit is subject to revocation at any time, if in the opinion of the Director of Streets and Sewers the revocation thereof will better serve the public interest."

On July 27, 1933, defendant Tuley as principal and defendant Maryland Casualty Company as surety executed to plaintiff the bond here in suit, which is conditioned as follows:

"Whereas, the Street Commissioner of the City of St. Louis, pursuant to Section 2570 of the Revised Code of St. Louis, 1926, has set aside for the use of the W. R. Tuley Materials Company the south 150 feet of the improved wharf between Sidney Street and St. George Street, the north line of said 150 foot portion being the south line of the portion of said wharf assigned to the West Kentucky Coal Company and has issued permit No. S-24453, dated July 15, 1933, authorizing W. R. Tuley Materials Company to anchor at the above described portion of said wharf one landing barge for use in the unloading of materials.

"Now, therefore, if the said W. R. Tuley Materials Company shall well and truly pay to the City of St. Louis, monthly in advance, the sum of $25 and at all times keep said barge in good, safe and seaworthy condition, and in case of the sinking of said barge for any cause remove at its own expense such barge or the wreck thereof from the landing so that it shall offer no obstruction to the harbor and shall keep said barge and the stages pertaining thereto in a condition satisfactory to the Street Commissioner and shall keep harmless the City of St. Louis from all damage sustained by it and all claims which may be made against it by reason of any injury to persons or damage to property resulting from anything done in connection with the exercise of the privilege granted in said permit, then this obligation shall be null and void; otherwise it shall remain in full force and effect."

The petition is in two counts.

The first count alleges as a breach of the bond that some time in the fall of 1934, a barge maintained by defendant Tuley sank in the river close to the wharf so that it constituted an obstruction to the harbor, and that defendant Tuley refused and still refuses to remove the sunken barge, and prays judgment for $1,000 by way of damages alleged to be the reasonable cost of removing said barge. The second count alleges as a breach of the bond that defendant Tuley has paid no rent for the use of the wharf since December 15, 1933, for which he owes plaintiff at the rate of $25 per month to the date of the filing of the petition, amounting to $425, and prays judgment for that amount with interest.

The trial, with a jury, resulted in a verdict in favor of plaintiff on the first count of the petition for $750, and on the second count for $86.25, and judgment was given accordingly. Defendants appeal.

At the conclusion of all the evidence defendants separately requested instructions in the nature of demurrers to the evidence as to each of the counts of the petition. The court refused these instructions and at the request of the defendants gave to the jury an instruction peremptorily directing the jury to return a verdict in favor of plaintiff on the second count of the petition for $75 with interest at six per cent per annum from March 15, 1934.

Defendants assign error here for the refusal of their instructions in the nature of demurrers to the evidence as to the first count of the petition.

Pursuant to the permit issued to him by plaintiff, defendant Tuley moored his landing barge to the wharf within the space granted him by the permit, and so occupied the space until March 9, 1934, when his permit was revoked by plaintiff for non-payment of rent. Tuley paid the monthly rent of $25 to December 15, 1933, but paid no rent thereafter.

The notice to Tuley revoking the permit is dated March 6, 1934, and states, that, "the permit is revoked, and you will have any property removed from the wharf by Friday, March 9th, otherwise we will have it removed at your expense."

Thereupon, Tuley...