
    NO. 8156
    COURT OF APPEAL PARISH OF ORLEANS.
    S. P. TURNBULL versus AUTOMOBILE SERVICE COMPANY.
    
      
    
   Dinkelspiel; J,

Plaintiff sues the defendant company, alleging that they were indebted to him, first in the eum of $435.00, the value of one Ford Automobile, eeoond in the sum of $107.00, being for amount of repairs paid defendant and finally for the sum of $30.09 per month for the loas of the use of said maohlne from August 9th, 1917 until suoh time as he receives the said touring oar. Alleging further that defendants, «ho had for a consideration, full charge of the machine in question, whloh icxhongk through their neglect «as stolen from their premises, praying judgment for the amounts in question.

The defendant first filed an exception that the petition «as too vague and indefinite and that it disclosed no oause or right of aotion, which exception was Deferred to the merits and answering, after denying indebtedness in any way to plaintiff, allege particularly that they refused to deliver said oar, liability and admit that admit the theft of the oar but deny/they offered $107.00 in oash which plaintiff refused to aooept, but'this offer was made under a mlsappreheneion and they did not understand iksk their legal rights, they allege further that they oould not be called upon to return the money paid for repairs, deny the value of the oar as alleged by plaintiff, $435.00, admit that plaintiff's oar was reoelved by them Jbr repairs Hay 37th, 1917, and allege that they completed their oontraot June 6th, 1917, notifying plaintiff, but that he failed to take the oar away from their establishment and that thpy exerolsed every reasonable oare and precaution and were not guilty of negllgenoe and that said oar was stolen from the street in front of respondent's garage without their knowledge and they did everything to reoover the oar in question, reporting to the Police Department and otherwise used every exertion but without avail, henoe pray for judgment.

We gather from the reoord the following substantial faots:

On the 15th of June, 1917 in a letter by the defendant en Its letterhead wrote to plaintiff, and we quote same as followd
"We beg to advise that your Ford oar under license No. 31793 Is oomplete and ready for delivery; storage oharges at twenty five (.35) per day will aoorue on June 15th."

Plaintiff In this oase substantially testifies that he owned a Ford touring oar, whloh he bought sometime In May, 1917, and meeting with an aooldent he delivered the oar In question for repairs, to Ur. Dlokerson of defendant company; that he went to their establishment while still in bad shape, oaused by the ao-oldent In question and that Ur. Dlokerson informed him that they would put the oar In proper shape and olaiming that they had done so plaintiff went there to defendant's business place about the 9th of August and was presented with a bill for $107.00.

Q. What did Ur. Dlokerson tell you at the time when you paid that bill of $107.007
A, Well, I went In and looked around for my oar and I didn't see It anywhere, Ur. Dlokerson was engaged talking to a lady and I didn't dUccfczx disturb him, so I went and looked in the baok part of the building without seeing my oar, and finally said to Mr. Dlokerson, "Well Dlokerson lets oaeh up for that automobile; he said alright 1 am always willing to take money, presented the bill for $107.00 and I, said to him I owe you another bill and he says, yes for the storage of that oar, 1 was to pay twenty five oents a day for the storage and Ur. Dlokerson oontinued, we won't settle that now beoauee that bill will be brought down considerably, made lose, so I simply paid him for the repairs.
Q. What did he tell you he was going to ao with the oari
A. I said, Where is the oar, he eaid Its- In the warehouse, I said X would like to get it and he replied, I am going to tell you, X will have the oar out, it is a little dsucdty dirty and dusty and X am going to olean the oar up, X informed him then that X had to go to Kenner that evening and asked him If he would ha have the oar at my house at three o'olook, and his reply was, yes indeed, X Will sure have it there, and X thought It was alright.

This witness oontinuee in tal's testimony: the time ap-proaohing and the oar not ooming, I rang up on the telephone and spoke to Ur. Diokerson and he said "Oh i I have been trying to ks oatoh you ever sinoe you left my office this monring, look herd ¡fcsnHBüdcHg sometime ago there was a oar stolen from my place and we have just found out it was your oar, I replied thats queer, so after a further conversation, the witness called upon Mr. Dickerson who offered to return to him the amount he had paid for repairs $107.00, Diokerson told him that the oar was tie stolen about the third of July and this conversation was on August 9th and he also informed me that he had notified the polioe and had endeavored to traoe the oar without suooess; he then goes on to testify that he had paid $430.00 for the oar in question but in a oolllssion with another auto the oar had been badly damaged and he goes on to describe the damages whloh were repaired by the defendant oompany.

In his testimony on rebuttal this same witness testified that in the aooident referred to he had three ribs broken, extracted collar bone was bruised, he had to have his teeth /jeasferató* all of them, and he was in a bad shape and that was the reason he was not able to go for his oar prior to the time testified to; he was oompelled to hire another oar to take his wife out riding, who was also injured in the aooident; he testifies to reoeiving the letter, charging twenty five oents per day for storage and to this ask extent presents for consideration his case.

One of the defendants, Mr. Diokerson in his testimony says:

Q. Mr. Diokerson, you are being sued here for the value of a Ford oar which it is alleged was stolen from your place of bus-flhere iness, we admit the theft of the oar. /Sun was the oar when it was stolen?
A. It was within-as near as I can tell, about twenty five feet pf the front door of our garage, parked against the ourbstone on Howard Avenue, that was our place of husmees.
The oar was stolen daring the daytime on the 13th, 5 o'clock In the afternoon, broad day light*
Q. lExxxc ilhy was that oar out In the street!
A, Because we simply didn't have room to keep It inside any more, our work was hanging, we had lots of work to do and we needed floor splaoe to aotually work on other jobs.

Witness testifies that his firm did a general servíoe business but nothing else and further testifies that the oar was brought Into the garage every night and never left out, that the oar was in the possession of defendant about two months; that he had notified plaintiff to take this oar away, Wfrfcrtra* he further testifies that there were eighteen or twenty oars out there in front until night time and they were all parked against the ourb-stone, he admits that he aooepted the prloe of the repairs íes knowing the oar had been stolen and that he expeoted through the polloe to get the oar baok, henoe made the statement that he woulki return It to plaintiff, that he endeavored to do that but without avail, that he had notified the polloe department about the 4th of July and that was the time he knew the oar In question had been missing.

Question by the Court as to whether or not they had reoeived any reply to the letter sent by his firm to plaintiff, he said no.

In referenoe to the value of the oar in question, Osoar UoOoy, an automobile salesman for four years and who was oars familiar with the value of / after desoribing it, puts the value at ♦335.00.

X. J. Eehlor was employed as salesman and stook man by the Universal Kotor Company and had been in the business for six or seven years, is familiar with the value and prloe of oare and he plaoes the value of this oar at ♦950.00 to 1970.00.

Eugene Stanley, who was Assistant Distrlot Attorney at the time in question, It was admitted, would have testified that Ur. Olokerson oalled on him end stated that he was willing to reimburse plaintiff In the value of the oar.

The Civil Code under the heading of the obligations of the depositary.

Art. 3937. “The depositary is bound to use the same diligenoe in preserving the deposit that he uses in preserving his own property.*

Art. 3938, "The provision in the preoeding artiole is to be rigorously enforced."

Section 4 of .art. 3938 reads: "If it has been expressly agreed that the depositary should be answerable for all negleote.”

Tho oase relied on mainly possibly by the defendant is that of Levy vs. Pike,Brothers & Co. 25 Ann. p. 630, and it was there held:

"Where the deposit was r. gratuitous one, and where the abstraction of the thing deposited seems to have been one of those bold and adroit aots which are carried out suooessfully in defínanos of ordinary prudenoe and diligenoe, and the possibility of whloh is seen only after its aooomplishment, the depositary is not liable, as he would be if the loss arose from gross or lnexousable negllgenoe on his part."

And this same oase on rehearing the Court finds that "this was a gratuitous deposit and deolded under the oiroumatqnoes the defendant not liable and not to be held to that rigid accountability he would have been had the oontraot been one of hiring, or had the deposit been made at the request of the depositary, or solely for his advantage, or had it been expressly agreed that he should be answerable for all negleots. 0. 0. 3938. Hone of these conditions appear to have entered into the agreement of the parties in this oase."®

Taking into oonsideratlon all the faots of this oase we hold the defendant liable mainly for the reason that they admit that from ten to at times possibly twenty oars are left on the publio streets without any watchman or oare of any kind or oharaoter, that no one in defendant's employ paid the sllgh. test attention to this automobile and it was left with others on the publio street without any one in oharge and it was placed with defendant by plaintiff for storage, the rate fixed being twenty five cents per day and had been taken away from :.a open plaoe sometime in the month of July 1917 and had never been returned to plaintiff, in fact had never been found, and, aa far as this record goes, is still missing, and not bein;. a gratuitous deposit we are of the opinion that defendant is liable and responsible for the value of the ear

But we do not consider that they are liable for the value of a new oar and they oan only be held for the value of a second hand car, which value, testified to by witnesses, would be for a second hand oar, from $336.00 to possibly #375.00.

We are therefore of the opinion that the amount allowed by the District Court in this oase is entirely too high and therefore the judgment in this case must be reduced.

For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the lower Court be amended, and thdt there now be judgment in favor of S. P. Turnbull and against the Automobile Service Company, W. H. Post and 7, A. Dickerson, in solido, for the full sum of #335.00, plaintiff to pay the costs of this Court and the defendants to pay the oosts of the District Court, and as thus amended, judgment be affirmed,

-Judgment amended and affirmed*

Claiborne, J, not having heard the argument takes no part.  