
    NO. 8246
    COURT OF APPEAL PARISH OF ORLEANS
    THOMAS H. KENDALL versus AUTOMOBILE SERVICE COMPANY INC.
    
      
    
   Dinkelsplel; J.

Plaintiff institutes this suit against the defendant, alleging that he was the owner of a certain automobile touring 7 __ 'oar; and that on the night of February 38th, 1930, his oar collided with a Laurel Street oar, with the result same was damaged to suoh an extent that it oould not move any further on its own power, and further alleging that finding this state of facts, he telephoned to defendant oompany, with a request that they send their mechanics to the scene of the accident, for the purpose of hauling petitioner's oar to their gere.ge. Subsequently two mechanics in the employ of defendant, arrived at the scene of the accident, inspected the automobile and plaintiff delivered his oar into their keeping and custody and instructed them to take same down to the garage of the defendant oompany; that, the possession of the said automobile was then and there accepted by the agents and employees of the defendant company, who agreed to follow out petitioner's instruotions, and petitioner went home. Alleging further that when he delivered said oar to the agents and employees of defendant oompany, his oar, excepting the parts broken by the collision, was intaot end. that all the broken parts, with the exception of the kit of automobile tools and the ohains, which plaintiff removed from the automobile and took home for safekeeping, were on the oar.

Plaintiff alleges further that defendant did not remove his automobile until the following morning, when he learned that it was still standing at the coiner of Laurel and Dafossat Streets and had been robbed of a number of parts during the night. He describes the parts stolen from' the machine and the gross negligence and want of oare and the axaxs failure to exercise due diligence, allowing his osr to remain all night without any protection or gaurds, hence defendants were liable for the property stolen, amounting to $144.80, and praying for judgment for that amount.

The answer admits various articles contained in plaintiff's petition, hut denies that plaintiff delivered the oar to their agents and employees and denies that same contained the parts claimed by plaintiff and in the Fifteenth Article of defendant's answer, avers that though they had been informed that plaintiff's automobile was 'waiting to be towed, when they arrived at the scene of the accident, they found it would be neoessary to get a" dolly" or truck in order to tow the machine, that they informed plaintiff that they would heve to get the dolly from the appurtenances shop and they were about to remove the parts and/aasbEksma from the machine when the plaintiff stated thst he, himself, would take charge of same; that respondent's workmen and employees thereupon proceeded be.ok to the shop to get the dolly and left plaintiffs machine, with all its parts and SDEakiems appurtenances in the possession and control of the said plaintiff himself; that if anything was stolen or taken from said machine, it wss while same was still under the control and in the oustody of the plaintiff and not while respondent wa.s responsible for same; and respondent denies specially, any negligence, responsibility or liability in the premises and prays thst plaintiff's suit be dismissed.

Plaintiff is a witness in his own behalf. He testifies substantially, that on February 38th, 1930, after an accident, he called up through the phone, defendant, at about eight fifteen P. M. that night. They sent two men to the place of the aooident, who stated they could not move the car without a dolly and they would go back to the shop to get it and would be back in about twenty minutes. He testified further that he took the tool kit and the chains and put them in his friend's oe.r and added "here is my oar, take it down to the shop and keep it until tomorrow morning and X will advise you what to do with it". The mechanics told him after an examination of the oar that they would have to return to the shop to get a dolly, because the steering gear was broken and that they would go baok and return in about twenty minutes. He then told them that he was going home, he was wet and cold; he testifies that he turned the oar over to them and said "I will take my tire chains and tool bag" and the rest of the oar they left with the mechanics.

Q. Did the mechanics take anything from the car themselves?
A. They did not take anything out of the oar but they did take the front tire that had been cut off in the collision and put it in their wagon and took it down; they did not say anything about taking anything else down and made no attempt atetramamk to take anything else.
Q. They were still with the machine when you departed?
A, Yes, they were on the ground picking up this tire when I turned my back and ivalked to get into another car and went home.
Q. IShen was the next time you heard anything about your automobile?
A. Seven o'olook the next morning; my mother in law went to Church and she found my car was still at Laurel and Du-fossat Streets; I immeidately called up the Automobile Service Company and asked why they had not moved the car and the clerk told me they were then on their way to feet it; I then went down to thst place, at about ten o'clock on Sunday morning and saw the night clerk.

And substantially further testifying to the conversation he had with the latter clerk, the clerk being asked why he had not moved the oar the night before, replied that one of their trucks had broken down and they had a lot of other jobs to attend to and simply could not get to it. "X then asked why he did not phone me so that X could make other arrangements or watch it myself? and he said he did not know that X had a telephone.

Q. Did he admit to you that he was the man you had spoken to the night beforeí
A. Yes sir, he said he had iaikeS taken the telephone message and that it was a negleoted duty not to bring the oar in that night and informed me that they could not get it after I turned the oar over to his meohanios.

This witness further testifies describing the condition of his oar, that on Sunday Morning, found two cushions and the spare tire on the back, with tube and rim, the headlights and the dash lamp gone; in fact everything detachable was removed. He further testifies that the items missing oost him 1144.80 which he paid.

On cross examination:

Q. The two men who came up and examined your oar and told you it would be impossible to tow the bar without a dolly?
A. Yes.
Q. These men informed you that they would have to go to the shop and get a dolly. Did you or did you not know the isngiJi location of the Automobile Servios Company shop?
A. I did.
Q. Then I assume you were in a position to. judge, were you not, the length of time it would take them on a rainy night, to return to their shop a,nd bring a dolly?
A. Yes.
Q. How long would it take?
A. Thirty minutes. They said they could make it in twenty.
Q. You say that these men picked up a tire whioh had been torn off in xhe collision and put it in their service car?
A. Yes.
Q, Did. or did not you are your other friends instruct them not to remove the cushions?
A. We did not, the ousions were not mentioned?
Q. Did or did not you tell these men you would take charge of the tar until they returned from the shop?
A. X did not, X told them I would turn the oar over to them; at that time I was hk wet and cold and had a severe cold end I was going home to get out of the wet.
Q. How did you turn over to them?
A. When they come up and said they were from the Automobile Servios Company, I said, there is my oar, take it down to the shop and keep it and I will come and tell you tomorrow what to do with it; I am going home and I got the bag and the ohains.

why This witness in testifying as to/whaiterxnrxnBixhe removed some parts of the oar and not others, particularly the tools, was asked by the Court:

Q. Do you mean that you feared the loss of the tools 4f the car went into the shop?
A. Yes, after it got to the shop; it is not a question of people stealing these tools, but I know how meohanios are, when they repair a osr, naturally they piok up the first tools they come to and he use it and misplaoe them.

In reference to what instructions the witness gave as to taking charge of his car, the Court asked:

Q. You instructed them to take care of the oar, but how they were to do it, you did not knowSt
A. Ho sir.
Q. It was not neoessary to remove the tire in order to repair the damage to the oar?
A. Ho sir.

The next witness who testified, is J. L. Swiller, He was one time a neighbor of the plsintiff and he testified that he remembered, meeting plaintiff on the night of March SO, at the corner of Laurel and Dufossat Streets; his oar had been in an accident with the railway oar and I went to see what the trouble was.

Q. Were you present with Mr. Kendall when two mechancis from Automobile Servios Company oame up there?
A. Yes, sir.
Q. D4d you hear any conversation between Mr. Kendall and those meohanios?
A. Yes.
Q. Relate to the Court what that conversation was?
A. Mr. Kendall phoned the Authmobile Service Company to oome and pull his oar in and they oame up, they didn't have a dolly, they said they needed a dolly end so both meohanios said they would go to the shop and get a dolly; Mr. Kendall said if they would not bsb be too long he would stay there and they said no and Mr. Kendall took the tool kit and the tire chain and I let him get in my oar and they said they would go to the shop and get the dolly and Mr. Kendall put the tool kit and the oheins in my oar.
0. Did the meohanios take anything from the oar?
A. One tire.

This witness, after describing the situation, was asked this question:

Q. After the conversation with Mr. Kendall, what' did these meohanios do.
A. They were both in the Automobile and drove up and Mr. Kendall said the oar was there end he asked if they were ready to take the oar and they said yes, but they needed a dolly and they said they would go back to the shop and ger a dolly; Mr. Kendall said, is there any use of my waiting and they said no, we will get the dolly and come baok and get the oar, and Mr. Kendall said, X will take my tools and go.
Q. I want to know what' they did after this conversation?
fellow A. One sat in the oar and the otheV got Out and took the tire that was lying alongside of the oar, and put ii in the truck.
Q. Where were you when they drove off?
A. Standing right beside them.
Q. Where was Mr. Kendall!
R. Right there.
Q. You are jmaiini positive of that?
A. Yes.
Q. How long did you stay there after they drove off?
A. We left the same time they ala.

He testifies that both the mechanics, witness and plaintiff drove off about the same time, the weather was rainy and oold.

CJ, You heard the mechanics tell Mr. Kendall it was no use for him to wait there?
A. Yes, X did.

Plaintiff on being recalled testified:

Q. Was it after the mechanics left the- scene of the accident and car, you and Mr. Swlller left?
A. they left after us, they were putting the spare tire whioh was oh the ground, in the oaf when ¡ir. Swiller and I went off and. got into his oar, which was a matter of thirty or forty mi feet in the rear of • the accidentJ they were both on the ground pioking Up the Spare tire and putting it in their truok.

He testified of his endeavor to have Mr. Diokersoa, to whom he had told his troubles, to replace the articles that had been stolen and he refused, stating that he would prefer to believe his meohanics than to believe me. He stated the impossibility of his taking the cushions and other SttisgsXffiS equipment in his friend's car, which was a small Ford; henos did not take anything except what he had testified to ,

The main witness for the defendant was Mr. Sonden-berg, who testified substantially that he was an automobile mechanic, had been so engaged for about five years, that on the night in question he was employed by the defendant oompany and that temas he went to the corner of Laurel and DufSJssat Streets to loo}: after plaintiff's troubles with hie oar where he had been ordered to go by the night clerk and described the trouble with the oar. A helper by the name of Harkness was with hj.m, and we went end found, -tjhe oar at on the River side of the street; tbe axel was Srafcsnt knocked baok and the steering rod was bent.

,Q. Tell the Court as briefly as you oan, just what conversation was had between the owner of the oar and yourselfT
A. I told Mr. Kendall that te we would have to in tow the oar and we did hot have any dolly and for him to take everything out of the oar which oould be stolen, to take thó extra tire off and he eaid no, he would attend to everything.
Q, Is is or is it not true that Mr. Kendall got into the Ford automobile and drove away while you and Harkness were still on the ground!,
sir, • A. Ho/stray Mr. Kendall was there when we left.

The reason this witness gave for not returning with the dolly or axtte otherwise, to take baok plaintiff's oar, was that he did not specify when he would oome baok, simply told him he would oome baok,

Q. Did you go baok!
A. In the morning about seven o'clock,
Q. üíhat reason, if there was any, caused you- to wait until the next morning before going back!
A., It was raining hard all night, we had lots of other service calls around the neighborhood and Mr. Kendall said he would take everything out of the car and so we did not worry about it.

On crosB examination, after deeoribing the distance between witness end lir. Kendall, the question was asked:

Q. Wh-'t did Hr. Kendall say to you when you arrived at the scene of the acoident?
A. He asked me if we come to take charge of the car and X told him yes.
Q. What did you then tell him?
A. We told him that we oould not tow the oar and we had to take it on a dolly.
Q. Did you pick up the tire that was lying on the ground?
A. Ho sir.
Q. Did Harkness?
A. Ho sir.
Q. Who drove away from the place firsts
A, We did.
Q. Did you let Hr. Kendall go away?
A. Ho sir.
Q. Did you tell Hr. Kendall you vvould be back in about twenty minutes?
A. Ho sir.
Q. What time did you go back actually to get that oar?
A. About seven o'clock the next morning.
Q. Did you expect Mr, Kendall to stay there all night until you came back?
A. Ho sir.

8Jy the Court:

Q. Why did you tell Mr. Kendall you would promptly return?
A, We did not specify what time we would return back to the oar.

litness knew the oar was on the street and made the report of that faot to his office, did not expect Mr. Kendall to stay there all night long, hut he said he was going to take care of everything or we would hove heon hack right away.

The testimony of Mr. Dyronte substantially was th-'t he was the night salesmanager for the defendant company and it was hie duty to attend to the truck cars, sending them out on calls; remembers having a call from plaintiff the night of the accident and that plaintiff notified him, gave him his license number, that he was in a wreck, had bent the fander, disabled the c=r and it could not run, hence witness sent the meo; -nice in charge of the tool wagon; he admits that tsstit v/3.3 cetvreen seven and eight o'clock the next morning before the oar was brought into the garage, that the night was rainy and stormy, he had calls on top of calls, and when the mechanics oame back on that night he sent them out to attend to other calls that were waiting for service and at five o'olook on Sunday morning he had sent them to get plaintiff's oar.

repetition The other parts of witness's testimony i3 a of what had taken place before and the denial of any responsibility.

The witness Mr. W. A. Dickerson, Manager and Principal Stockholder c£E the defendant company, knows nothing of the ao-oident itself. In a conversation with Hr. Kendall on the following morning, examined the oar and plaintiff showed him that cushions the were gone, the spare tire, head light, and asked witness what defendant company was going to do about it, and I told him that we were not responsible fsrxx because to do the business we were not engaged and perfectly olear of all blame. His information in reference to the entire matter was what he got from Mr. Damonte, otherwise knew nothing at ail about the matter except as to the value of the articles lost.

The deposition of D. Harkness, substantially states tha.t be was a mechanic's helper at the time stated, in the employ of the defendant company and that he was ordered hy Mr. Damonts, the night clerk, to accompany Mr, Sonderherg, the othsr witness, on the night of February 28th, 193Ü, to go after plaintiff's car; it was a very had night, it was raining, the wind was blowing very hard, the accident to plaintiff's machine was that it sea run into A street car and the machine was badly damaged. He testifies further to remove the valuables, including the cushions, tools and spare tires, as we had been instructed to do in all oases, but the owner of the oar objected to oür taking the valuables and stated that he had a' friend living bear by and he would take them to this friend's home, which he did,,or at least he did not allow us to take tab them to ihBgaxstga the garage.

We hate thus quoted the main portions of the testimony In this ease and the question presented to this Court is whether under the oircumstanoes and all the facts in this case, defendant can or oannot be held ¡responsible for the loss of plaintiff's property.

The testimony as in all similar caseB is conflicting and as frequently decided by the Supreme Court and this Court in such contingencies, when questions of fact are purely involved and the credibility of the witnesses must be inquired into, the Judgment of the lowór Court will be affirmed, unless manifestly erroneous.

Martinez vs. Fabacher, 118 La. 955; Williams vs. R. R. Co. 121 La. 438; Basile vs. Taranto, 124 La. 677; Ast. 3003 Civil Code.

"The attorney is responsible, not only for unfaithfulness in his management, but also for his fault or neglett.

Nevertheless, the responsibility with redpeot to faults, is enforoed less rigorously against the mandatary acting gsatetjsaaiK gratuitously, than against him who receives a reward.8

It is proven and not denied that on the night in question, as stated in plaintiff's petition, plaintiff met with an accident to his automobile, and finid findu-ing it impossible to' use the machine, stopped at the j&SBsgl place mentioned and phoned to defendant oompany to tajee charge of his automobile;SES&xfcfcswpE to send for same, whioh defendant answered and sent two of its wen to plaintiff's issistapee. After an examination of this car, they found it so badly injured that it oould not be moved withput the aid of a dolly, henoe, being informed of this fact and being told by these men in the defendant's employ, that they would return and bring the dolly in order to take this automobile back to their shop, plaintiff contends that taking out his tools and some other portions of loose material, he left his csr in the hands of defendant's emplpyses and whilst the men were gathering up end taking into their possession, the tire whioh was on the street, plaintiff and his friend, in the Fprd oar belonging to the latter, returned to his home, believing , as he had a right to do, that the oar was in the possession of the defendant oompany, who would return for it as soon as they opuld oome bank with the dolly. There yrere two men, either one of whom opuld apd should have remained with th&s oar until the dolly was brought; they did not see fit to do so, they possibly believing that plaintiff would remain,whilst he positively asserts and testifies that ha was suffering from a very bad oold, that it was a rainy and °old night and he having left his automobile with these people, with his friend, went home.

The Oompany fs next heard of after plaintiff had been notified that his cap; was standing just where he left it, he immediately phoned to the defendant company,- who after this message, sent their men bsok to the seene of the accident arid removed the oar to its garage. In the meantime the property desoribed in plaintiff's petition had been stolen, when, no one knows, no one has testified, the oar remaining in the street all night without gaurd or oare-taker, it doss prove that defendant was negligent in not having sent for the oar and during the time that the oar stood on the street unprotected during the night, while one of the men employed by the defendant could easily have remained until the other returned, and thst being what they were employed for, would make defendant responsible.

The taking of possession by the defendant of the tire, which is not denied, proves that they intended to return with the dolly to get plaintiff's automobile. Else why take possession of the tire if they did not intend to do the other portion of the work?

The answer speaks for itself.

The property oould and should have been taken oare of by the defendant company; they did not do so; henoe, the loss must fall on them.

"The true measure of liability is that the bailee is bound to that degree of diligence which the manner and the nature of his- employment make it reasonable to expect of him and that anything less then this is culpable in him."

6th Ocrpus Juris, 1118, Seo. 57.

In the supplemental brief filed by the appellant in this ease, we are referred to the esse of Armistead versus the Shreveport and Red River Railroad Oo., 108 La. p. 171, as determinative of the present ease.

In that esse there was evidently a deliberate abandonment of the merchandise, henoe the judgment was rendered on tfc:-t partioular point.

In this the osee at Bar, if under the mixsüutra&uaxsa evidence, plaintiff abandoned his property deliberately, leaving it in the street, possibly the decision in the Armistead case would apply. But we are not inclined to that view. We believe, as stated in this opinion, that the evidenoe satisfied the Judge of the Court aquo that possession had been given by this plaintiff to the defendant and the automobile in question, therefore, was not abandoned. Tho whole question is one of fact and as we have stated the Judge of the lower Court had a better and dearer view of the matter then we have.

For the resscns assigned, it is ordered, adjudged and deoreed, that the judgment of the Court aquo is hereby affirmed, costs of both Courts to be peid by the defendant.

•Judgment affirmed*  