Vetter et al. v. Browne

• Citation: 85 S.W.2d 197
• Decision Date: 19 July 1935
• Docket Number: No. 23427.,23427.
• Parties: ERWIN F. VETTER AND WESTERN AND SOUTHERN INDEMNITY COMPANY, A CORPORATION, RESPONDENTS, v. PAUL V. BROWNE, APPELLANT.
• Court: Court of Appeal of Missouri (US)

85 S.W.2d 197

ERWIN F. VETTER AND WESTERN AND SOUTHERN INDEMNITY COMPANY, A CORPORATION, RESPONDENTS, v. PAUL V. BROWNE, APPELLANT.

No. 23427.

St. Louis Court of Appeals. Missouri.

Opinion filed July 19, 1935.

Respondents' Motion for a Rehearing Overruled September 10, 1935.

Petition for Writ of Certiorari Denied by Supreme Court October 18, 1935.

Appeal from the Circuit Court of St. Louis County. — Hon. Julius R. Nolte, Judge.

REVERSED AND REMANDED.

N. Murry Edwards for appellant.

(1) The court erred in submitting this case to the jury because plaintiffs did not make any proof whatever that a certificate of title to the automobile in question had been issued to them under the laws of this State. Mathes v. Westchester Fire Insurance Co. (Mo. App.), 6 S.W. (2d) 66; State v. Cox (Mo. Sup.), 268 S.W. 87; Boyer v. Garner (Mo. App.), 15 S.W. (2d) 893; Isaacson v. Van Gundy (Mo. App.), 48 S.W. (2d) 208. (2) The court erred in giving plaintiffs' instruction No. 1, because there was no evidence to support the question as to whether or not the plaintiffs were the owners of the said automobile as required to be found in said instruction. Mathes v. Westchester Fire Insurance Co. (Mo. App.), 6 S.W. (2d) 66; State v. Cox (Mo. Sup.), 268 S.W. 87; Boyer v. Garner (Mo. App.), 15 S.W. (2d) 893; Isaacson v. Van Gundy (Mo. App.), 48 S.W. (2d) 208. (3) The court erred in giving plaintiffs' instruction No. 3 because there was no evidence of a loss by plaintiffs for the reasonable rental of the automobile in question. Conley v. Kansas City Rys. Co., 259 S.W. 153. (a) The court erred in refusing to give and read to the jury defendant's instructions D and E directing the jury that they could not allow plaintiffs anything for the loss of use of the automobile. Conley v. Kansas City Rys. Co., 259 S.W. 153.

Erwin F. Vetter for respondents.

Whether plaintiff complied with the laws of the State of Missouri in the purchase of the automobile in question was a matter of affirmative defense, and the burden of showing such fact was upon the defendant. Hence, the question of title to the automobile is not in issue. McFall v. Wells, 27 S.W. (2d) 497; State ex rel. Connecticut Fire Ins. v. Cox, 306 Mo. 537; Booth v. Scott, 276 Mo., l.c. 31; United Shoe Machinery v. Ramlose, 210 Mo., l.c. 645, 109 S.W. 567; American Mfg. Concern v. Manufacturers' Printery, 6 S.W. (2d) 984; Heinrich Chem. Co. v. Herman, 251 S.W. 162; Scientific American Club v. Horchitz, 128 Mo. App. 575; Groneweg & Schmoentgen v. Estes, 139 Mo. App. 36; Shohoney v. Railroad, 231 Mo., l.c. 147, 132 S.W. 1059; McDermott v. Sedgwick, 140 Mo. l.c. 182; American Copying Co. v. Muleski, 138 Mo. App. 419; Knapp & Co. v. Culbertson, 152 Mo. App. 147; Coliseum Athletic Assn. v. Dillon, 204 Mo. App. 504; Smith v. Brougher, 274 S.W. 532. Where, upon demand, a bailee refuses to deliver an automobile left in his possession on a parking lot, and delivery is made several months later, the bailor is entitled to the rental value of the automobile during the time it is out of his possession, whether he rented another automobile or not. Conley v. Kansas City Rys. Co., 259 S.W. 153; Ford Motor Co. v. Freeman, 168 S.W. (Texas) 80; 32 A.L.R. 711; 78 A.L.R. 922.

BECKER, J.

This is an action for damages for the loss of an automobile and for the reasonable rental value of the automobile during the time that plaintiff Vetter was deprived of its use. The verdict of the jury was for plaintiffs and from the judgment rendered defendant appeals.

The automobile in question was covered by a policy of fire and theft insurance in the Western and Southern Indemnity Company, and plaintiff Vetter, after the loss, having received $400, the principal sum of the insurance policy, signed a contract subrogating to the Western and Southern Indemnity Company any right of action against any person responsible for the loss to the extent of said $400, and the indemnity company thereafter joined Vetter, the owner of the automobile, in bringing this action.

Plaintiffs' amended petition, upon which the case was tried, alleges that plaintiff Vetter was the owner of a Plymouth automobile, and that the defendant Paul Browne was the owner of an automobile parking station at 7th and Walnut streets in the city of St. Louis, Missouri; that on November 25, 1932, plaintiff Vetter parked his car (of the reasonable value of $600) with defendant by delivering and turning over full possession and control of his said automobile to defendant's agents in charge of and operating said parking lot; that several hours later Vetter made demand upon defendant for his automobile in accordance with his agreement of parking, but that the defendant failed and refused to deliver said automobile to plaintiff Vetter. The petition then alleges that the automobile was recovered on April 14, 1933, at which time its reasonable market value was $150, and that plaintiff Vetter "lost the reasonable rental value during the time he was deprived of its use in the amount of $370," and prays judgment in the sum of $800, together with interest from the date of the loss of the automobile.

Defendant's answer was a general denial coupled with a plea that whatever loss plaintiffs suffered, if any, was caused by plaintiff Vetter's negligence contributing to the theft of said automobile by negligently leaving or permitting the keys to be left in said automobile.

Plaintiffs' reply was a general denial.

When plaintiffs' first witness was placed upon the stand, defendant objected to the introduction of any evidence on the ground that plaintiffs' petition did not state a cause of action against defendant because it was not alleged therein that a certificate of ownership for the automobile in question had been issued to either of the plaintiffs before the date of the alleged loss sued for. This objection was overruled and exceptions duly saved.

We need not set out the evidence adduced at the trial, it being sufficient for the purposes of this appeal to state that plaintiffs adduced testimony sufficient to take the case to the jury.

Appellant's first assignment of error is that the trial court erred in submitting plaintiffs' case to the jury because plaintiffs made no proof whatever that a certificate of ownership to the automobile in question had been issued to them, as required by sec. 7774 (c), Rev. St. of Mo. 1929 (Mo. St. Ann., sec. 7774 (c), p. 5194), and that, therefore, no ownership was proven under said section 7774 (c), and any attempted sale of an automobile without compliance therewith was "fraudulent and void," and cites in support thereof Mathes v. Fire Ins. Co. (Mo. App.), 6 S.W. (2d) 66; State v. Cox (Mo. Sup.), 268 S.W. 87; Boyer v. Garner (Mo. App.), 15 S.W. (2d) 893; Isaacson v. Van Gundy (Mo. App.), 48 S.W. (2d) 208. The point is without merit.

Plaintiffs' petition alleges the ownership of the automobile in plaintiff Vetter, and at the trial plaintiff Vetter himself testified that he bought the automobile in November, 1931, but did not offer in evidence a certificate of ownership. However it is apparent from plaintiff's own testimony that the car, when he purchased it, was a new car and not a used or second-hand car. In this situation the provisions of sec. 7774 (c), Rev. St. of Mo. 1929 (Mo. St. Ann., sec. 7774 (c), p. 5194), relied on by appellant in support of this assignment of error, do not apply. A reading of that paragraph (c) of the section discloses that it is intended to apply only in case of sale or transfer of the ownership of a used or second-hand motor vehicle or trailer, and does not apply in the case of the purchase of a new automobile. This is apparent from the language of paragraph (c) of the section itself, which is as follows:

"... In the event of a sale or transfer of ownership of a motor vehicle or trailer for which a certificate of ownership has been issued the holder of such certificate shall endorse on the same an assignment thereof, with warranty of title in form printed thereon, and prescribed by the commissioner, with a statement of the liens or incumbrances on said motor vehicle or trailer, and deliver the same to the buyer at the time of the delivery to him of said motor vehicle or trailer. The buyer shall then present such certificate, assigned as aforesaid, to the commissioner, at the time of making application for the registration of said motor vehicle or trailer... . Four months after this law takes effect and thereafter, it shall be unlawful for any person to buy or sell in this State any motor vehicle or trailer registered under the laws of this State, unless, at the time of the delivery thereof,...