Oehmen v. Portmann , 153 Mo. App. 240 ( 1910 )

CAULFIELD, J.

(after stating the facts). — I. Defendants contend that plaintiff’s first instruction was erroneous because it submitted to the jury the issue whether the piano was the property of the plaintiff, when there was no evidence upon which the jury could have based such a finding. This contention is based upon the showing made by the record that when the piano was delivered to and injured by the defendants, it really belonged to plaintiff’s thirteen-year-old daughter, having been bought and paid for by him and given to her as a present. If this were a case where plaintiff’s title was properly in issue, the submission of that issue upon the showing made would have been reversible error. But it is not such a case. The defendants received the possession of the piano under the contract with plaintiff and thereby became his bailees and by force of the contract of bailment incontestably conceded the title to be in him, unless at least they can show that the true owner is making an adverse claim. [Sherwood v. Neal, 41 Mo. App. 416, 424; Bricker v. Stroud Bros., 56 Mo. App. 183, 186.] There is no pretense here of any such adverse claim. On the contrary, the plaintiff’s child derived her title from him, and he was therefore entitled to the custody and care of the piano as her natural guardian and to sue for its injury. [Sections 403, 423, R. S. Mo. 1909; Rhoades v. McNulty, 52 Mo. App. 301; Brandon v. Carter, 119 Mo. 572, 24 S. W. 1035.] His recovery here would estop him from presenting a further demand as such guardian and would inure to the benefit of his ward to the extent of her interest. [Gratiot St. Warehouse v. Missouri, Kansas & Texas Ry. Co., 124 Mo. App. 545, 565, 102 S. W. 11.]

It is true as held in Rhoades v. McNulty, supra, that a father cannot recover as the natural guardian of his child without the pleading showing that he sues as such guardian. But the plaintiff is not suing as guardian and need not do so. He is suing in his own right as bailor. His relation as natural guardian is referred to merely as showing that in the very nature of things on the record before us there will be no claim of the true owner to trouble defendants. Whether the plaintiff was the owner of the piano at the time defendants contracted with him was then wholly immaterial. If the jury found the other facts required by the instruction complained of, the verdict should have been for the plaintiff whether ownership in the plaintiff was or was not found to have existed at the time he delivered the piano to defendants. The instruction was erroneous in that it required the jury to find a fact which was not essential to the plaintiff’s right of recovery. But the finding of this fact in no way prejudiced the defendant, and constitutes no just ground for complaifit. [LaForce v. The William City Insurance Co., 43 Mo. App. 518, 533.] This assignment of error is ruled against'the defendants.

II. Defendants further contend that the court erred in giving the plaintiff’s second instruction, asserting that the first and second branches of said instruction find no support in the evidence.

We have examined the record carefully and find no evidence tending to show what loss the plaintiff suffered by being- deprived of the use of the piano while it was being repaired, and therefore, it is true that the second branch of said instruction finds no support in the evidence. As it is a familiar rule of law that damages of this kind must be established by proof, the instruction was erroneous in the respect mentioned. [Hoffman v. Railway, 51 Mo. App. 273, 279.] In this Mew it is not necessary to determine whether the first branch of the instruction is based upon any evidence. Suffice to say it is impossible to tell from reading the record what damages the jury allowed under the first branch and what they allowed under the second branch. The error as to the second branch of the instruction would necessarily lead to the reversal of the judgment and a remanding of the cause if it were not that the proof of the expense plaintiff was put to for repairs is uniform and exact, and the branch of the instruction referring to that was correct. The expense so shown was forty dollars and we may order the excess, sixty dollars, remitted from the verdict. If remitted within ten days from the filing of this opinion the judgment will be affirmed for the residue of forty dollars, with the costs of the appeal adjudged against the plaintiff • otherwise the judgment will be reversed, and the cause remanded.

Reynolds, P. J., and Nortoni, J., concur.