Ins. Co. v. Sturtevant Co.

• Decision Date: 29 March 1927
• Docket Number: 19946
• Citation: 156 N.E. 446,116 Ohio St. 299
• Parties: The National Liberty Insurance Co. Of America v. The Sturtevant-Jones Co.
• Court: Ohio Supreme Court

156 N.E. 446

116 Ohio St. 299

The National Liberty Insurance Co. Of America v. The Sturtevant-Jones Co.

No. 19946

Supreme Court of Ohio

March 29, 1927

Bailments - Bailee liable for servant's unauthorized acts while possessing property, when - Automobile destroyed by fire while driven for servant's personal use.

Where a contract of bailment contains no exemption from liability on account of unauthorized acts of the servants of the bailee no act of the servant of the bailee, whether or not authorized by the bailee, committed while the servant is in possession of the subject of bailment by authority of the bailee, is effective to abrogate the contract between the bailor and the bailee nor to absolve the bailee from liability to the bailor for a breach of such contract, which if done by the bailee in person would not accomplish such result.

The parties stand in this court in the same relation as in the courts below. One Lou M. Burlingame was the owner of an automobile, which had been stolen from him and was recovered near Findlay, Ohio. Burlingame employed the defendant to make such repairs upon the automobile as might be necessary to enable it to be driven upon its own power to the service station of the defendant at Toledo and to there deliver it to Burlingame. The defendant, in pursuance of such employment sent one of its employes to Findlay for the automobile. The employe went to Findlay, made repairs, and drove the car safely to Toledo. Upon arriving at Toledo lie did not deliver the car at the service station of the defendant, nor to Burlingame, but, in violation of his instructions, and in violation of his master's contract with Burlingame, drove it in an opposite direction, to his own home, thence to a dance hall, and thence on a pleasure ride with a party of friends. While on this excursion, the automobile back-fired, caught fire, and was destroyed. Delivery to Burlingame was thereby rendered impossible.

Burlingame had a policy of insurance upon the automobile with the plaintiff. Plaintiff paid Burlingame for the loss, and took an assignment from him of his chose in action against the defendant.

The amended petition sets out the facts above epitomized; avers failure to make the necessary repairs before driving the automobile from Findlay to Toledo, and failure to deliver the automobile to Burlingame.

The answer admits the employment of the defendant by Burlingame to make such minor repairs as were necessary to permit the driving of the automobile from Findlay to the service station of the defendant, and to deliver the automobile there to Burlingame, and, by way of defense, avers that it sent one of its employes or servants, who had been employed by it for a period of several years; avers that, at the time the employe was originally employed, due, proper, and necessary care was exercised in making such selection; avers that such employe was trustworthy, reliable, competent, and qualified to perform the contract it had made with Burlingame; avers that such employe made such repairs as were necessary to permit the driving of the automobile from Findlay to Toledo, and that such repairs were properly made; avers that after such employe arrived in Toledo, without its knowledge or consent, and in violation of its instructions and orders, he turned aside and deviated from the journey undertaken for and at its direction, and drove the automobile out of and away from the course designated by it, on his own business and pleasure; that said employe did not deliver the automobile at its service station, and that while its employe was operating the automobile off of the course designated by it, and in violation of and contrary to its directions, and upon the employe's own business and pleasure, without the scope of his employment, the automobile was partially destroyed by fire.

The reply denied the averments of the answer inconsistent with the averments of the petition.

Upon trial, the jury rendered a verdict for the defendant judgment was entered upon the verdict; error was prosecuted to the Court of Appeals; the judgment of the court below was there affirmed. Error is prosecuted here to reverse the judgment of the Court of Appeals.

Messrs Doyle & Lewis, and Messrs. Mooney, Bibbee & Edmonds, for plaintiff in error.

Messrs. Kirkbride, McCabe & Boesel, for defendant in error.

ROBINSON J.

The sole question presented here is whether a bailee for hire may be made to respond in damages to his bailor for a breach of his contract of bailment to redeliver the subject of the bailment to the bailor, where the subject of bailment has been destroyed and redelivery has been rendered impossible by an act of the bailee's servant, done by such servant solely for his own purpose and pleasure, without the knowledge of the bailee, and in violation of his orders, but while the subject of bailment, by the express order of the bailee, was in the exclusive possession of such servant for the purpose of performance of the contract of bailment.

The question arose in this case by the refusal of the court to give the following charge, requested by the plaintiff, in writing, before argument:

"(1) If you find from a preponderance of the evidence that the defendant, pursuant to an agreement with Lou M. Burlingame so to do, sent its employe to Findlay, Ohio, to bring Burlingame's said automobile from Findlay, Ohio, to defendant's service station in Toledo, Ohio, and that defendant's employe so sent took possession of said automobile at Findlay, Ohio, then I charge you that the possession of said automobile by said employe was the possession of the defendant, and that said employe was required to exercise ordinary care in the safe-keeping of said automobile until he had delivered same to defendant's service station in Toledo, Ohio, and if you find from a preponderance of the evidence that said employe of said defendant did not exercise ordinary care in the safekeeping of said automobile, and by reason of said failure to exercise ordinary care in the safe-keeping of said automobile said automobile was damaged and not delivered to said Burlingame at defendant's service station, then the plaintiff is entitled to recover from the defendant the amount of damages sustained by said Burlingame.

"(2) If you find from a preponderance of the evidence that the defendant, pursuant to an agreement with Lou M. Burlingame so to do, sent its servant to Findlay, Ohio, to bring Burlingame's said automobile from Findlay, Ohio, to defendant's garage in Toledo, Ohio, and that defendant's servant so sent took possession of said automobile at Findlay, Ohio, then I charge you that the possession of said automobile by said servant was the possession of the defendant, and the defendant would be liable for its servant's acts and conduct in the matter of the safekeeping of the automobile until it was delivered by him to defendant's garage in Toledo, Ohio, notwithstanding said servant for some purpose of his own may have diverted or turned aside from the direct course or route from Findlay, Ohio, to defendant's garage in Toledo, Ohio."

Also by exceptions to the following charge, given by the court as a part of his general charge:

"Th...