Langford v. Nevin

• Decision Date: 16 March 1927
• Docket Number: (No. 2792.)
• Citation: 293 S.W. 673
• Parties: LANGFORD v. NEVIN.
• Court: Texas Court of Appeals

293 S.W. 673

LANGFORD v. NEVIN.

(No. 2792.)

Court of Civil Appeals of Texas. Amarillo.

March 16, 1927.

Rehearing Denied April 6, 1927.

Appeal from District Court, Wichita County; Guy Rogers, Judge.

Suit by E. P. Nevin against W. S. Langford. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Mathis & Caldwell, of Wichita Falls, for appellant.

Kay, Akin & Smedley, of Wichita Falls, for appellee.

JACKSON, J.

This suit was instituted in the district court of Wichita county, Tex., by the appellee, E. P. Nevin, against the appellant, W. S. Langford, to recover the value of a Ford coupé delivered by appellee to appellant for the purpose of having some minor repairs made thereon. The appellee alleged that the appellant operated and maintained a garage and automobile repair shop in the city of Wichita Falls for the repair of Ford cars; that on October 16, 1924, he drove his automobile into the garage and repair shop and requested certain repairs to be made thereon, and thereby became liable and promised to pay a reasonable price for the services to be rendered, and that appellant, by his agent, servants and employees accepted the car, agreed to make the repairs and to have it ready for delivery at said place on or about 5 o'clock p. m. on the same day; that it was intended by both parties that the car should be kept in the garage and repair shop where it was delivered, and that the appellant in accepting the car, agreeing to make the repairs thereon and deliver the same to the appellee, contracted to keep the car in the garage and repair shop until called for and to deliver it at said place; that in violation of this agreement and obligation the appellant placed the automobile on a public street and on the opposite side of the street from the garage and repair shop, and left the keys in the lock, from which place the car was stolen by some person unknown to appellee, and that the car has never been found or delivered to him; that if appellant had performed his obligation and kept the automobile in the garage and repair shop instead of leaving it unlocked with the key in it out on a public street it would not have been stolen, and that by reason of the breach of appellant's contract the appellee has been damaged in the sum of $650, the reasonable market value of the car.

Appellee alleges in his second count substantially the facts set out as above, but pleads in addition that by receiving the car for repair, the appellant became liable to him to use reasonable care and diligence in repairing the car, keeping it safely and protecting it from loss and damage; that the car was carelessly and negligently left on the public street with the keys in the lock, from which place it was stolen; and that such carelessness and negligence on the part of appellant was the proximate cause of the theft and loss of his car.

W. S. Langford, the appellant, answered by general demurrer, general denial, and specially pleaded: That he was not liable in any amount because he had, conspicuously posted in his place of business where the appellee delivered the automobile for repairs, a notice in large letters substantially as follows: "Not Responsible for Any Loss of Cars or Parts in Case of Fire or Theft." That the appellee had theretofore been in appellant's repair shop and knew that he accepted automobiles for repairs under the condition that he would not be responsible for the loss of a car by either fire or theft, and that the appellee delivered said car to the appellant knowing that he would not be liable for the loss of said car if caused by fire or by theft. He denies that he was guilty of negligence in any manner, or that it was through any fault or negligence of his that the car was stolen.

The court in his charge defined "negligence" and "ordinary care," and in response to special issues the jury found in effect that appellant was guilty of negligence in leaving the car outside of the shop with the switch key in it, and that the reasonable market value thereof was the sum of $495; and in accordance with such findings the court rendered judgment in favor of appellee, from which judgment this appeal is prosecuted.

The appellant assigns as error the action of the trial court in excluding the testimony offered by him to the effect that there were three large signs in the building, 7 or 8 feet in length, which were visible and could be seen from each entrance, reading, "Not Responsible for Loss in Case of Fire or Theft," and that each of them were hung about 8 inches above the top of an automobile, and that on the day that appellee placed his car in the shop and it was taken for repairs and at the time he left it there the signs and the reading thereof were called to his attention. The appellant had pleaded as a defense that these signs were hanging in his place of business, and that appellee knew that appellant accepted cars for repair on the condition that he would not be responsible for their loss by either fire or theft, and that appellee delivered his car to appellant knowing that he would not be liable for the loss of said car if caused by fire or caused by theft.

There is testimony tending to show that the lot across the street from the garage and adjacent to the street from which the car was stolen was under the management and control of appellant, and in connection with his business he kept secondhand cars and tractors on said lot, where three or four of his employees worked; that in conducting the business, in order to keep cars properly arranged in the garage and repair...