Foote v. De Bogory

• Decision Date: 24 March 1944
• Docket Number: No. 13640.,No. 13482.,13482.,13640.
• Citation: 179 S.W.2d 983
• Parties: FOOTE v. DE BOGORY.
• Court: Texas Court of Appeals

179 S.W.2d 983

FOOTE v. DE BOGORY.

No. 13482.

No. 13640.

Court of Civil Appeals of Texas. Dallas.

March 24, 1944.

Rehearing Denied April 21, 1944.

Appeal from District Court, Dallas County; Wm. M. Cramer, Judge.

Action by Eugene De Bogory against Lou Foote for destruction of plaintiff's airplane when defendant's hangar in which airplane was stored was destroyed by fire. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

Bonney & Paxton and Clifford S. Dillard, all of Dallas, for appellant.

Thompson, Knight, Harris, Wright & Weisberg and J. Hart Willis, all of Dallas, for appellee.

YOUNG, Justice.

Appellee's recovery was based upon allegations of an oral agreement, viz.: The storage of his Stinson airplane in a certain hangar owned by defendant Lou Foote, who, without plaintiff's knowledge or consent, moved the plane to another and different place where it was destroyed by fire. A trial to the court resulted in plaintiff's judgment for $3,500, from which appeal has been duly prosecuted.

In addition to fixing above amount as market value of the property, findings of fact by the trial court were: That plaintiff had contracted with Foote, defendant, to store the plane in hangar No. 1 at the latter's aviation field, South Beckley Street, Dallas; and specifically, that it should not be stored in hangar No. 4; that without the consent or knowledge of plaintiff, the plane was stored in hangar No. 4, which, with all contents, was destroyed by fire September 25, 1942, hangar No. 1 not being burned; that storage charges were on a monthly basis, paid by plaintiff from time to time. On motion of defendant the further finding was made that Lou Foote, his agents and employes, were in nowise negligent with regard to the fire and destruction of property in hangar No. 4.

Defendant Foote had conducted his school of aviation at the Love Field Base (north of Dallas), but prior to July 1, 1942, had been required by Government order to locate elsewhere, which he did by establishing the South Beckley field. The plane in question had been stored with defendant at Love Field and, as plaintiff testified, he was told by Mr. Lett, defendant's agent, that his plane might have to be moved to the new location; not knowing, however, the date of its actual removal in July 1942. Following is the gist of plaintiff's narrative upon which the instant action is predicated: That later on, he had gone to Love Field for the plane and found it had been taken to the South Beckley port, where he proceeded to go and look for it, through defendant's various hangars (four in number). The time was just after a severe rain and hangar No. 3 was muddy, with water standing in No. 4. The plane was found in hangar No. 1, and here plaintiff's testimony is quoted: "I was a little vexed because they moved it without telling me they were going to move it, and so I talked to the man who seemed to be in charge of hangar No. 1 and I told him that I had a time finding my plane. I says `I guess it was all right to move it down here but I don't want you to move it over there into hangar No. 4 because it is wet down there and I don't want it in that place.' `Oh,' he said, `we will keep it right in here for you in No. 1.' That's where it was then. I says `Well, I guess that will be all right. My plane is a handsome thing and people get into it and feel of the seat' and I told him to be sure to keep it locked up so people could not get into it and he said he had a key and that he would do that and look after it so I never did fly it out of Beckley Field. One day after that I heard of this fire."

On cross-examination, plaintiff testified that he was led to believe the man he saw in hangar No. 1 was in charge, because "He asked me what I wanted in there and what he could do for me"; and by plaintiff's description, the unknown person was not identified as either of defendant's administrative agents, Lytle or Lett. Plaintiff did not ask the one with whom he dealt his name, having never seen him before or since; stating that he did not know whether such person was an employe of defendant or not. It was further shown that on the same occasion witness talked with Lytle, defendant's maintenance superintendent, not mentioning the matter of keeping said plane in the particular hangar. On such trip, plaintiff visited defendant's administration building, observing that the port maintained some thirty to forty employes.

A part of plaintiff's case in chief was the detailed testimony of defendant Foote and his officials Lytle and Lett; neither identifying as an employe the party who talked with plaintiff at hangar No. 1, nor having knowledge of any arrangement about specific storage. Further defensive testimony was, in effect, that Mr. Lett flew the plane over to Beckley Field, first putting it in hangar No. 3 for an hundred-hour check requested by plaintiff. It was then placed in hangar No. 1 until No. 4 was completed, whereupon outside planes were continuously stored in hangars 3 and 4, school planes in 1 and 2, subject to an occasional shifting; all hangars being of the same size and material-concrete blocks and wooden rafters. Fourteen planes were burned in the fire, all in hangar No. 4, of which three were the property of defendant. At to his operating force, Mrs. Foote was in charge of office and storage, assisted by a Mr. Fidler of the bookkeeping department; Mr. Lytle stating that at time of plaintiff's trip to the Port, conversation related merely to locating a licensed pilot for a proposed trip.

Appellant vigorously assails the court's finding of an express contract to house the plane in hangar No. 1, "since there was no competent testimony in the record to show that the person with whom plaintiff allegedly talked concerning the contract, was an agent with authority to contract, or a servant or employe of the defendant." A careful study of the record convinces us that all points of error should be sustained. Apparent authority of the person with whom plaintiff dealt is not alleged or claimed. Continental Oil Co. v. Baxter, Tex.Civ.App., 59 S.W.2d 463. And admittedly, no contract was made directly with Mr. Foote. Plaintiff's general allegations of liability, therefore, must be construed as charging that such unidentified person was acting for and on behalf of his principal in the instant transaction; Jackson v. Dickey, Tex.Com.App., 281 S. W. 1043; in which connection, the burden was upon him to offer testimony tending to...