#### LOUISE WILSON, by Her Next Friend, NELL DALTON, v. E. H. POSEY, Trading and Doing Business as PARKWAY CLEANERS AND LAUNDRY.

(Filed 5 March, 1941.)

Bailment § 6—

Where plaintiff alleges a bailment for hire on the part of defendant dry cleaning company in accepting plaintiff’s coat to be cleaned, and defendant’s failure to return the coat, hut the complaint fails to contain a sufficient allegation of special damages, plaintiff’s recovery should be confined to the fair market value of the coat as of the date it was delivered to defendant.

Appeal by plaintiff from Armstrong, J., at August Term, 1940, of BuNcombe.

Affirmed.

Plaintiff delivered to tbe defendant a winter coat to be cleaned. Tbe coat was lost and never returned. Plaintiff instituted tbis action in tbe county court of Buncombe County to recover damages, alleging tbe value of tbe coat to be $22.50, and alleging, further, inconvenience, loss of time from school and tbe like.

At tbe trial in tbe county court, defendant requested, in writing, special instruction as follows: “That in no event would tbe jury be authorized to answer tbe issue in an amount exceeding tbe fair market value of tbe coat as of tbe date tbe same was delivered to tbe defendant, and tbe court charges tbe Jury that in no event could tbe Jury award tbe plaintiff an amount exceeding $22.50.”

Tbe court declined to give tbis instruction but gave certain other instructions which would permit a larger recovery. There was a verdict and judgment for tbe plaintiff in tbe sum of $70.00. Defendant appealed assigning error.

When tbe cause came on to be beard in tbe court below tbe judge sustained, among others, defendant’s assignment of error directed to tbe *262refusal of the court to give the tendered prayer for instruction, and ordered a new trial. Plaintiff excepted and appealed.

Don G. Toung for plaintiff, appellant.

Jones, Ward & Jones for defendant, appellee.

Per Curiam.

Plaintiff alleges a bailment for hire, and there is no sufficient allegation of special damage. The failure of the judge of the county court to instruct the jury on the measure of damages as prayed by the defendant was prejudicial error and the court below properly so held.

The judgment below is

Affirmed.