Kalinowski v. M. A. Newhouse & Son

• Citation: 53 S.W.2d 1094
• Decision Date: 08 November 1932
• Docket Number: No. 21989.,21989.
• Court: Court of Appeal of Missouri (US)
• Parties: KALINOWSKI v. M. A. NEWHOUSE & SON, Inc.

53 S.W.2d 1094

KALINOWSKI v. M. A. NEWHOUSE & SON, Inc.

No. 21989.

St. Louis Court of Appeals. Missouri.

November 8, 1932.

Rehearing Denied November 23, 1932.

Appeal from St. Louis Circuit Court; Fred J. Hoffmeister, Judge.

"Not to be officially published."

Action by Walter Kalinowski against M. A. Newhouse & Son, Incorporated. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Greensfelder & Grand and Glen Mohler, all of St. Louis, for appellant.

Frank C. O'Malley, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for the alleged conversion of a picture frame. Judgment went for plaintiff for the sum of $750, and defendant has appealed by the usual steps.

Plaintiff, Walter Kalinowski, a native of Germany, but a naturalized American citizen, was at the time of the trial in June, 1931, a professor of modern languages in St. Louis University in the city of St. Louis. Some years prior thereto he had resided in Chicago; and immediately before coming to St. Louis, he had taught in Westminster College in Fulton, Mo. Defendant, M. A. Newhouse & Son, Inc., is a concern located at 484 North Kingshighway in the city of St. Louis, and engaged in the art and picture business.

The frame in question, together with the painting it contained, had formerly belonged to plaintiff's mother, the Baroness Henrietta Von Kalinowski, who lived in the ancestral home in Coblenz, Germany, until the time of her death in the early part of 1928. The picture was in oils, and was entitled "Venus in Love"; while the frame surrounding it was of the Florentine period, being hand-carved, and covered with gold leaf. The painting — and we are now using the term as inclusive of the frame also — was an heirloom in the Kalinowski family, having come into its possession near the beginning of the eighteenth century by inheritance from the Austrian branch of the family, which was also of the nobility. Plaintiff testified that from his earliest recollection he recalled the picture hanging in his mother's salon, and that by reason of its history, associations, and tradition there was a great deal of sentiment attached to it.

The evidence shows that the Kalinowski family had formerly been very wealthy, but that following the end of the World War it had become so greatly impoverished as a result of the economic situation in Germany that the mother was forced to sell many of her most priceless possessions to secure the bare necessities of life. Accordingly, in 1923 or 1924, while plaintiff was residing in Chicago, his mother sent him the painting in question, along with certain other art treasures, to be sold for her account. It appears that the several articles were thereupon exhibited in the Grand Art Galleries in Chicago, and that while sales were made of a number of the objects, including an old Meissen clock and some Gobelin tapestries, the painting was not sold, but was returned to plaintiff's possession.

Subsequently, in the removal of plaintiff's effects to Fulton, Mo., the picture was slightly damaged in shipment; and in the latter part of May, 1927, plaintiff took the picture to defendant's galleries in the city of St. Louis to ascertain the cost of repairs, and to arrange for its sale. That defendant received the painting itself was admitted, but it is only fair to defendant to state that it denied ever having received the frame. However, the truth of that controverted issue of fact is foreclosed to us by the verdict of the jury in plaintiff's favor, and defendant now makes no insistence to the contrary.

The evidence was that plaintiff's dealings were with Mr. Alfred M. Newhouse, an elderly gentleman who was the president of the company at the time the picture was turned over to it, but who had died prior to the trial of the case. The testimony was that upon seeing the frame he exclaimed over its beauty; that he stated to plaintiff, or at least to plaintiff's wife, that it was far more valuable than the painting, because the latter was not inscribed with the name of the artist; and that he forthwith placed the frame in his art gallery and turned the lights upon it, and informed plaintiff that it was the most marvelous frame he had seen in all his travels, including his several visits to Europe.

Later the picture was returned to plaintiff, but without the frame; and on September 13, 1928, the present action was instituted.

The substantial portion of the amended petition, which prayed damages in the sum of $2,500, was as follows:

"Plaintiff states that on or about the first day of June, 1927, being the owner of and in possession of a certain oil painting entitled `Venus in Love' and frame surrounding the same, he delivered said picture and frame to the defendant for the purpose of hiring the said defendant to repair a certain small break in the canvas of said picture. The frame aforesaid was approximately twenty-one by twenty-eight inches in dimension, was hand-carved and covered with gold leaf; and that said frame was known as an old Florentine frame of the Seventeenth Century and was owned and possessed by the plaintiff's ancestors for many generations, dating back to the Seventeenth Century, and was given to the plaintiff by his mother who is now deceased; that the said frame is an heirloom, and in addition to its intrinsic value was and is of great value to the plaintiff as such heirloom, and reasonably worth to the plaintiff the sum of twenty-five hundred dollars.

"Plaintiff avers that on or about the first day of December, 1927, defendant returned said picture to this plaintiff, removed from said frame; that on or about said day, and frequently thereafter, plaintiff demanded the return of said frame from defendant, but that defendant has failed and refused to return said frame to the plaintiff, or to account for the same."

The answer of defendant was a general denial.

A trial of the issues thereupon followed to a...