Rowell v. City of St. Louis

• Decision Date: 31 March 1872
• Citation: 50 Mo. 92
• Parties: ZACCHEUS P. ROWELL, Respondent, v. CITY OF ST. LOUIS AND DAVID BERLIN, Appellants.
• Court: Missouri Supreme Court

50 Mo. 92

ZACCHEUS P. ROWELL, Respondent,

v.CITY OF ST. LOUIS AND DAVID BERLIN, Appellants.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

E. P. McCarty, City Counselor, for appellants.

G. M. Smith, for respondent.

ADAMS, Judge, delivered the opinion of the court.

The plaintiff brought this suit against the city of St. Louis and David Berlin for damages. The petition charges, in substance, that the steamboat Nebraska had sunk at the wharf of St. Louis, and had been abandoned by the owners to the board of underwriters; and that the underwriters had employed the plaintiff to raise the boat, and that defendant, David Berlin, being harbor master, and in the employment as such of the city of St. Louis, permitted the plaintiff to enter upon the fulfillment of his contract, and that he was proceeding to do so, and had expended in the operation $1,128; and while he was so engaged the defendant Berlin unlawfully, and as the servant of the city, took possession of the boat and broke it up and filled it in with earth and sand, and constructed thereupon a levee or wharf for the use of the city, which wharf so constructed was, at the commencement of the suit, in use by the city. He alleged in his petition that the boat so destroyed was worth $4,000, and that he was damaged by the acts of the defendants to the amount of $2,000.

The answer of the defendants simply denied all the allegations of the petition. The bill of exceptions shows that upon the trial of the case the plaintiff gave evidence tending to prove the facts stated in his second amended petition; and that the plaintiff also read in evidence article v of an ordinance of the city of St. Louis, establishing and regulating the harbor, etc.

And the defendants, on their part, gave evidence tending to prove the facts stated in the answer to said second amended petition. The court, at the instance of the plaintiff and against the objections of the defendants, gave an instruction to the effect that if defendant Berlin, as harbor master, took forcible possession of the boat and ejected the plaintiff therefrom for the purpose of removing the obstructions, then the city was liable if the plaintiff could have raised the boat.

At the instance of the defendant the court gave an instruction in regard to the amount of damages, and that if the plaintiff could not have raised the boat, he was not entitled to recover. The court refused to instruct that the plaintiff, on the pleadings and...