Cascade Auto Co. v. Petter

• Decision Date: 05 February 1923
• Docket Number: 10520.
• Citation: 212 P. 823,72 Colo. 570
• Parties: CASCADE AUTO CO. v. PETTER.
• Court: Colorado Supreme Court

212 P. 823

72 Colo. 570

CASCADE AUTO CO. v. PETTER.

No. 10520.

Supreme Court of Colorado, En Banc.

February 5, 1923

Error to District Court, El Paso County; Arthur Cornforth, Judge.

Action by Louis Petter against the Cascade Auto Company. Judgment for plaintiff on a directed verdict, and defendant brings error. On application for supersedeas.

Supersedeas denied, and judgment affirmed.

John S. Stidger, of Denver for plaintiff in error.

Harris & Price, of Colorado Springs, for defendant in error.

BURKE J.

Plaintiff in error was defendant and defendant in error was plaintiff in the trial court, and they are hereinafter so designated.

Defendant operated a garage in Colorado Springs. Plaintiff stored his automobile there, under contract. When called for, the car had disappeared. It was recovered in a badly damaged condition in an adjoining state. This suit was brought for such damages, and the cause was tried to a jury. To review a judgment in the sum of $625.69 entered upon a directed verdict in favor of plaintiff, defendant brings error, and the cause is now before us on its application for a supersedeas.

Plaintiff began storing his car with defendant in September, 1918, at an agreed price of $7.50 per month. On the evening of November 19th following, the car was in storage under said contract and was in good condition. About 4 a. m. the next day an unidentified man, claiming to be plaintiff, came to the garage, drove out the car, had it filled with gasoline which he charged to plaintiff, and drove away. All this was in the presence, and with the acquiescence, of defendant's servant in charge. So much is undisputed.

At the close of all the evidence, each party moved for a directed verdict. Defendant's motion was overruled and plaintiff's sustained. These rulings constitute the alleged error upon which counsel for defendant bases his argument for a supersedeas. That argument depends for its efficacy upon two propositions: (1) That the question of defendant's negligence should have been submitted to the jury; (2) that the judgment is contrary to the evidence.

1. A request by each party for a directed verdict is equivalent to a stipulation that the facts may be found by the court. The court's finding, thereupon made, is conclusive if there is evidence to support it. Beuttell v. Magone, 157 U.S. 155 15 S.Ct. 566, 39 L.Ed. 654; Phenix Ins. Co. v. Kerr, 129 F 723, 724, 64 C.C.A. 251, 66 L.R.A. 569; Nisbet v Siegel-Campion Co., 21 Colo.App. 494, 516, 123 P. 110.

2. It is said that the original complaint alleged, and the evidence established, that the car in question was stolen and that defendant, by virtue of a sign to that effect conspicuously posted in its place of business, was not liable in case of theft. Whether the offense through which plaintiff lost his automobile was larceny was a conclusion of law, and plaintiff was not bound by an opinion thereon expressed in pleading or proof. Moreover, defendant could not so limit its liability by posting such a sign. Parris v. Jaquith, 70 Colo. 63, 67 197 P. 750; Denver U. T. Ry. Co. v. Cullinan (Colo. Sup.) ...