Vetter et al. v. Browne, No. 23427.

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

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...