Reynolds v. Hanson

• Citation: 191 S.W. 1030
• Decision Date: 07 February 1917
• Docket Number: No. 1944.,1944.
• Parties: REYNOLDS et al. v. HANSON.
• Court: Court of Appeal of Missouri (US)

191 S.W. 1030

REYNOLDS et al. v. HANSON.

No. 1944.

Springfield Court of Appeals. Missouri.

February 7, 1917.

Appeal from Circuit Court, Greene County, Division No. 1; Guy D. Kirby, Judge.

Replevin by Stello O. Reynolds and another against Ettie B. Hanson. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Walker & Musgrave and Wright Bros., all of Springfield, for appellant.

COX, P. J.

Action of replevin for possession of a piano. Verdict and judgment for respondents, plaintiffs below, and defendant appealed.

The chief errors complained of relate to the giving and refusing of instructions. Appellant asked a peremptory instruction to find for defendant, which was refused. Seven others were asked also, all of which were refused.

The facts developed at the trial were substantially as follows: About twelve years before the trial, Albert N. Hanson, the father of plaintiffs, lived in Springfield, and he and the mother of plaintiffs, the two plaintiffs, and two sons constituted the family. The father was a musician and played on almost all kinds of instruments except a drum. At that time, about twelve years before the trial, a piano was bought by the father and placed in the home on Christmas day, where it remained until his death, which occurred about a year before the date of the filing of this suit. In the meantime, the two plaintiffs had married and left the home of their parents — the last one, Pearl, some four or five years before this suit. The mother had died prior to the marriage of Pearl, and the father had married the defendant. When Stella left the home, nothing was said about the piano. When Pearl married and left, she asked her father for the piano. Her father then said, "See the Mrs.," meaning the stepmother, the defendant, and she said that the father enjoyed playing on it so much she had better leave it at home. Some three or four years thereafter, the father died, and, when the administrator inventoried the personal property, this piano was included and then turned over to defendant as the widow of Albert N. Hanson, the father of plaintiffs, as a part of her statutory allowance at a value of $250. About ten months thereafter this suit was filed.

In addition to the foregoing, there was testimony, briefly stated, as follows:

Harry Hanson, a brother of plaintiffs, testified that, a short time before the piano was purchased by the father, he said that he was going to buy a piano as a Christmas present for Pearl and Stella, and asked if that would not be a nice present.

Q. What was said by him at the time about it being a Christmas present to the daughters? A. He was going to keep it as long as he lived, and then the girls could have it. Q. Was that said at the time the piano was given to your sisters? A. Yes, sir. The two girls received another Christmas present at the time, a music cabinet. I was present on Christmas morning. Q. Was the gift made to the girls by your father at that time? A. The piano was. Q. What was done and said in regard to the piano that morning? A. My father said there was the Christmas present, and my mother brought in the music cabinet. Q. What did he tell them it was? A. A piano for Christmas for the girls. Q. Who did he say it was for? A. The two girls.

George B. Rayfield testified that he sold the piano to Mr. Hanson, and, in the conversation, he spoke of it as a Christmas present for the two young ladies, the Hanson girls, his children, and said if he purchased the piano that they should not expect any other present for Christmas.

Mrs. West:

He told me he was going to buy Pearl and Stella a piano. So, when Christmas came, the piano came to the house. Mr. Hanson was a musician himself, performed on the piano and sang.

Mr. Lintner:

He told me he was in a quandary what to get the girls for a Christmas present. * * * He said, "I believe I will buy them a piano," and was commenting on what a nice Christmas present it would be.

The plaintiffs were present at the appraisement of their father's property, and there is some conflict in the testimony as to whether or not they then claimed to own the piano.

Fred Hanson, a brother of plaintiffs, and his wife, testified that they were at Mr. Hanson's house a day or two after the piano was bought, and he said to them that he had bought him a piano and took them into the room to show it to them and spoke of the price; that they never heard the girls claim the piano until after their father's death.

Appellant insists that the testimony as a whole is not sufficient to sustain the verdict in plaintiffs' favor, and that the peremptory instruction to find for defendant should have been given. In passing upon this question, we must, of course, give plaintiffs the benefit of the most favorable reasonable construction of the testimony in their behalf, and by doing that we are of the opinion that there was sufficient testimony to take the case to the jury, and, since we are not permitted to weigh the testimony and set a verdict aside as against the weight of the evidence as the trial court may do, that contention must be ruled against appellant.

The court of its own motion gave the following instruction:

"The court instructs the jury that, if you find and believe from the evidence that the deceased father of plaintiffs purchased the piano in controversy as a Christmas present for the plaintiffs, you should find for the plaintiffs. If you find and believe from the evidence that the father of plaintiffs did not purchase the piano in controversy as a Christmas present for the plaintiffs, but purchased it for himself, then you should find for the defendant."

The title of plaintiffs to the piano, if they have title, rests on a gift inter vivos from their father. A gift may be made in that...