Oehmen v. Portmann

• Decision Date: 30 December 1910
• Citation: 133 S.W. 104,153 Mo. App. 240
• Parties: OEHMEN v. PORTMANN et al.
• Court: Missouri Court of Appeals

133 S.W. 104

153 Mo. A. 240

OEHMEN v. PORTMANN et al.

St. Louis Court of Appeals. Missouri.

December 30, 1910.

1. BAILMENT (§ 8)—ESTOPPEL OF BAILEE TO DENY TITLE OF BAILOR.

Where persons receive personalty under contract with another and thereby become his bailees, they incontestably concede his title unless at least they can show that the true owner is making an adverse claim, and hence, where bailees are sued by the bailor for injury to the thing pledged, they cannot defend on the ground that the property belongs to the bailor's daughter by gift from him.

2. GUARDIAN AND WARD (§ 4) — NATURAL GUARDIANS—POSSESSION AND CONTROL OF CHILD'S PROPERTY.

Where a child derives title to property from her father, he is entitled to the custody thereof as her natural guardian and may sue for its injury under the express provisions of Rev. St. 1909, §§ 403, 423; his recovery estopping him from presenting a further demand as such guardian and inuring to the benefit of his ward to the extent of her interest.

3. BAILMENT (§ 14)—INJURY TO PROPERTY OF CHILD—ACTION BY PARENT AS BAILOR.

Where a parent delivers a piano belonging to his child to others to be moved, and they injure it, the parent need not sue as natural guardian for damages, but may sue in his own right as bailor.

4. APPEAL AND ERROR (§ 1033)—HARMLESS ERROR—INSTRUCTIONS.

An instruction erroneous as requiring the jury to find facts not essential to plaintiff's recovery is not prejudicial to defendant, and he cannot complain thereof.

5. DAMAGES (§ 163)—INJURIES TO PERSONAL PROPERTY—BURDEN OF PROOF.

Damages for the loss of use of personalty alleged to have been injured by defendant must be established by proof.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by Arthur F. Oehmen against Frederick H. Portmann and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded unless remittitur be made.

Action against defendants for damaging a piano while moving it from a residence on Leffingwell avenue in the city of St. Louis to one on Madison street. The petition declares: That on August 10, 1907, plaintiff delivered his piano in good condition to the defendants at No. 1625 North Leffingwell avenue, the defendants being in the piano moving business, and the defendants agreed, for a valuable consideration to be paid to them, to safely move it to No. 2810 Madison street; but, in violation of their duties as carriers of plaintiff's piano, they failed to exercise ordinary care in moving said piano, and so negligently moved it that it was broken, split, and battered and its strings loosened and strained and out of tune, and was delivered to plaintiff in such damaged condition and unfit for use. That, by reason of said negligence and failure of defendants, plaintiff was compelled to spend $40 for removing his piano to and from a repair shop and in attempting to have it repaired and was deprived of the use of the piano about 15 weeks from the time the piano was injured until it was returned from the repair shop, and that the piano still remains damaged. That plaintiff had been damaged in the sum of $200, for which sum he prayed judgment. There was judgment for $100 in plaintiff's favor in the circuit court, and defendants have appealed to this court.

The defendants concede that they were in the piano moving business at the time alleged, and that the piano was delivered to them by the plaintiff, and that they contracted to move it for him as alleged, and there is evidence tending to prove that, while they were moving the piano, it was broken, etc., through their negligent handling of it, and that plaintiff was compelled to expend $40 for its repair. The plaintiff testified, however, that, while he had bought and paid for the piano, he had made a present of it to his 13 year old daughter before he had contracted with the defendants to move it, and there was nothing contradictory of this testimony in the record.

The court, over the objection of the defendants, who duly excepted, gave the following instructions at the instance of plaintiff:

"(1) If you find from the evidence adduced in this case that defendants did on or about the 10th day of August, 1907, undertake to carry for hire for the plaintiff herein one piano as mentioned in the evidence, if you find that the plaintiff was the owner of said piano, from a place known as No. 1625 North Leffingwell avenue to No. 2810 Madison street in the city of St. Louis and state of Missouri, as mentioned in the evidence, and if the jury find from the evidence that the plaintiff herein was on the 10th day of August, 1907, the owner of the piano mentioned in the evidence, and that at said time it was delivered to defendants, or their servants and agents, in good condition and undamaged in any manner, and if you further find from the evidence that the defendants or...