Lively v. Webb City, 5778.

• Decision Date: 16 June 1937
• Docket Number: No. 5778.,5778.
• Citation: 106 S.W.2d 517
• Parties: LIVELY et al. v. WEBB CITY.
• Court: Missouri Court of Appeals

106 S.W.2d 517

LIVELY et al. v. WEBB CITY.

No. 5778.

Springfield Court of Appeals. Missouri.

June 16, 1937.

Appeal from Circuit Court, Jasper County; Ray E. Watson, Judge.

"Not to be published in State Reports."

Action by M. R. Lively, administrator of the estate of H. M. Zimmerman, deceased, and others, against Webb City, Mo. From a judgment of nonsuit plaintiffs appeal.

Affirmed.

R. H. Davis, of Joplin, for appellants.

C. Woodson Oldham and T. E. Sinnard, both of Webb City, for respondent.

ALLEN, Presiding Judge.

This is an appeal from the circuit court of Jasper county. The plaintiff in this case filed suit against the city of Webb City, to recover for certain chats and rock boulders, alleged to have been unlawfully removed from land of the plaintiffs.

At the end of all the evidence in the case, the court sustained a demurrer offered by the defendant, and the plaintiffs took an involuntary nonsuit, with leave to move to set the same aside.

The petition stated that M. R. Lively, one of the plaintiffs, herein, was administrator of the estate of H. M. Zimmerman, deceased, and that the city of Webb City was a municipal corporation, organized and existing under the laws of the state of Missouri. That the plaintiffs Hendrickson and the estate of said H. M. Zimmerman, deceased, represented by M. R. Lively administrator, were in possession of certain land located in the city of Webb City, and that on the land was a pile of mine tailings, chats, and rock boulders, and that the defendant city, unlawfully and without right or authority removed from the pile of tailings, chats, and rock boulders, and converted to its own use and benefit 10,000 yards of said tailings and chats and 7,500 yards of said boulders; that said mine tailings and chats were of the reasonable market value of 5 cents per cubic yard; and that said boulders were of the same value.

That later, at the request of defendant city, it removed from said premises and chat pile about 8 yards of said chats, of the reasonable value of 5 cents per yard, and same is due and unpaid. That the reasonable value of the property so removed is $875.

The answer was a general denial. The plaintiff does not combine in two counts in his petition the two items upon which recovery is sought, but combines them in one count, asking for a judgment of $875.

The court sustained a demurrer to all the evidence, and the plaintiff took an involuntary nonsuit, as above stated.

It was admitted by the parties that the city of Webb City was a city of the third class, organized under the laws of the state of Missouri, and that M. R. Lively was the duly appointed administrator of M. H. Zimmerman, deceased, and that the estate of said Zimmerman, deceased, was the owner of an undivided one-half interest in the real estate described and an undivided one-half interest in the chats, tailings, and boulders and that plaintiffs, Charles Hendrickson and Robert Hendrickson were each the owner of an undivided one-fourth interest in the real estate and premises and an undivided one-fourth interest in the chats, tailings, and boulders described.

It was further admitted that Ed or `Happy" Leonard was the duly appointed and acting street commissioner of the defendant city in the years of 1932-1933 and until April, 1934, and that Leo Wommack was the duly appointed and acting street commissioner from April, 1934, to the present time. It was further admitted that Plaintiff's Exhibit 1 is the official ordinance of the city of Webb City, and was in force at all times mentioned in the petition and evidence.

The evidence disclosed that the land in question, belonging to the plaintiffs, was mining land within the city limits of Webb City. This land had been mined at some time prior to 1922, the evidence being uncertain as to the exact date when mining operations ceased, and as a result of the mining operations there had been deposited upon the land, certain gravel, mine tailings or chats and rock boulders. The evidence showed that some time between the year of 1932 and the spring of 1936, the greater part of the gravel or chats and some of the boulders had been removed. The evidence showed that the CWA and FERA were in operation during the period between 1932 and 1936, and that a number of improvement projects including graveling and leveling school yards and building parks were planned and carried out in the city of Webb City by the CWA and FERA. It was further shown that during this period large quantities of gravel or chats and boulders were used in carrying out these projects, and that during this period gravel or chats and boulders were hauled from the land of the plaintiffs. While it is not shown that all of the gravel from this pile was used in the city, the testimony of some of the witnesses shows that some of it, how much not being shown, actually was used on the city streets.

The testimony was that the hauling from this particular pile was done by eight or ten trucks, some of which were unmarked, and some of which were marked "Webb City Special Road District," and that the trucks were loaded by men paid by the CWA.

It was shown that "Happy" Leonard was street commissioner of the city, from April, 1932, to April, 1934, and that he was succeeded by Leo Wommack, who was street commissioner from April, 1934, until the time of the trial. The evidence showed that "Happy" Leonard was in charge of the street work in the city during his term of office, and that he supervised the graveling of the streets. In this connection, Mr. Otto Ruhl testified that he was the supervisor, or engineer of the CWA from 1932 until the spring of 1934; and that after the spring of 1934 he was the county supervisor for the FERA. He testified, "We graded and graveled many streets in Webb City, raised some of the sidewalks, and relaid some of the sidewalks. We had a couple of park jobs, and a couple of drainage jobs, all inside of Webb City. We graded and graveled some of the school yards in Webb City, the Franklin School was one of them. Tracey Avenue was one of the streets we built. We done some grading and graveling on Hall Street. The work on Fourth Street was the construction of an entire new street from clear across the corporate line into Carterville. That was from Hall street eastward to the corporate limits of Webb City, then to Pine Street, in Carterville. The CWA paid for all the labor on these jobs, except the city driver."

"Q. What did Mr. Leonard, street commissioner have to do with the repairs on the streets, if anything? A. We let him handle all of the general street work in the City of Webb City; we made him general foreman over those streets now inside of the city limits."

Also Mr. Ruhl testified that the gravel was "delivered on the streets by our trucks under our superintendent, who would be Mr. Leonard. Whether it was gotten for the City, I don't know."

On cross-examination Mr. Ruhl testified that "Happy" Leonard was placed on the CWA pay roll for a period of about a month, and was paid by the CWA during that period. That later the Jefferson City office refused to approve the arrangement, and that Leonard was replaced on the city pay roll. Later Leo Wommack succeeded "Happy" Leonard as street commissioner and continued working in the same capacity.

The plaintiff showed by the testimony of Mr. Lively that the gravel pile in 1932 was approximately 300 feet long, 200 feet wide, 40 feet high in a cone shape, and about 15 feet in diameter at the top; and, further, that the pile had been removed to an extent, between the height of a man and "down to the grass roots." From these figures Mr. William Stewart computed that there were approximately 24,000 yards of gravel and chat.

Mr. Lively testified that "Happy" Leonard asked him for permission to get about 80 loads of chats and boulders about June 2, 1932. He stated that Leonard told him that he, Leonard, had gotten the 80 loads and that the bill was to...