Light v. Lend Lease Transp. Co.

• Decision Date: 05 February 1959
• Docket Number: No. 19048,19048
• Citation: 156 N.E.2d 94,129 Ind.App. 234
• Parties: Leo E. LIGHT and Roy C. Hodge, Appellants, v. LEND LEASE TRANSPORTATION COMPANY, Appellee.
• Court: Indiana Appellate Court

Page 94

156 N.E.2d 94

129 Ind.App. 234

Leo E. LIGHT and Roy C. Hodge, Appellants, v. LEND LEASE TRANSPORTATION COMPANY, Appellee.

No. 19048.

Appellate Court of Indiana, In Banc.

Feb. 5, 1959.

John H. Beasley, Terre Haute, for appellants.

Rosenfeld, Wolfe & Allen, Terre Haute, for appellee.

BIERLY, Judge.

This is an appeal by the appellants, defendants below, from a judgment of the Vigo Superior Court No. 2 in favor of appellee, plaintiff below, in an action brought by appellee to recover the reasonable value of an automobile leased by appellee to appellants and which appellants failed to return to appellee after said lease is alleged to have been terminated.

Issues were joined upon the appellee's complaint filed herein, the appellants' answer thereto in two paragraphs, and appellee's reply to appellants' second paragraph of answer. Paragraph one of appellants' answer admitted the execution of the lease agreement between the parties, which lease agreement stated, among other things, that upon termination thereof the appellants would return a certain vehicle then in their possession in the same condition as it was when delivered to appellants, ordinary wear and tear excepted, and that the said lease has terminated and said car has not been returned, but denied that the reasonable value of said automobile at the time of the termination of said agreement was $1700.00. Paragraph two of said answer alleged that the lease agreement between the parties does not impose upon appellants the obligations of an insurer, and does not require appellants to return the automobile covered thereby, in the event of the theft or destruction of said automobile without the fault and in the absence of negligence on the part of the appellants, and that said automobile was stolen on or about the first day of February, 1952, without any fault or negligence of the appellants, or either of them. Appellee's reply to appellants' second paragraph of answer admitted the execution of the lease agreement but denied that appellants were not obligated to return the automobile covered thereby, and denied that said lease agreement does not impose upon appellants the obligations of an insurer.

The questions presented to this court are: (a) Whether or not the automobile in question was stolen without any fault or negligence on the part of appellants, or either of them; (b) whether, if so stolen, the appellants were thereby relieved of their obligation to return said automobile to appellee; and (c) the reasonable value of the automobile at the time of the termination of the lease agreement if appellants were not relieved of their obligation to return it to appellee.

Following the conclusion of the evidence, and subject to a stipulation by and between the parties, and after the court had overruled appellee's motion for special findings of facts and conclusions of law, for the reason that said motion was not timely made, the court entered its decision and rendered judgment thereon in favor of appellee and against appellants, which decision and judgment is as follows:

'The Court being duly advised, finds for the plaintiff (below) that the complaint is true; that the plaintiff has been damaged in the sum of Thirteen Hundred Twenty-five Dollars ($1325.00); that by stipulation of parties defendant is entitled to One Hundred Eighty Dollars and Eighty-five Cents ($180.85) credit on any damages found by the Court to have been sustained by plaintiff, and the Court therefore finds that the plaintiff should recover of the defendants the sum of Eleven Hundred Forty-four Dollars and Fifteen Cents ($1144.15) and the costs of this action.

'It is therefore ordered, adjudged and decreed by the Court that the plaintiff recover of the defendants the sum of Eleven Hundred Forty-four Dollars and Fifteen Cents ($1144.15) and the costs of this action.'

A motion for a new trial was filed by appellants. Omitting caption and signature it reads as follows:

'Each of the defendants moves for a new trial herein on each of the following grounds:

'1. The decision of the Court is not sustained by sufficient evidence.

'2. The decision of the Court is contrary to law.

'3. The court erred in striking from the record, the answer of defendants' witness, Carl L. Mowry, testifying by deposition, to each of (certain) questions propounded by the defendants, and in sustaining plaintiff's objections to each of said questions. * * *'

The motion for a new trial as heretofore stated was overruled and this appeal followed.

The sole error assigned for reversal is that the trial court erred in overruling appellants' motion for a new trial.

Appellee complained that on September 4, 1951, plaintiff and defendants entered into a lease agreement by which plaintiff leased a certain 1951 Chevrolet automobile to the defendants herein under the terms of a lease agreement which states, among other things, that upon termination thereof defendants would return said vehicle then in their possession in the same condition as it was when delivered to defendants ordinary wear and tear excepted; that said lease has terminated and said car has not been returned; and that the reasonable value of said automobile at the time of termination was $1700.00. The prayer of the complaint asked for judgment of said sum of $1700.00 and costs.

Lend Lease Transportation Company, a Minneapolis, Minnesota, organization, leased automobiles on an annual basis to business organizations and corporations. One such organization was the National Literary Association of Terre Haute, Indiana, which leased a number of cars from appellee company. Appellants Leo E. Light and Roy C. Hodge were in the business of soliciting subscriptions for publishers, including said National Literary Association. One Carl L. Mowry testified by deposition that he was a crew manager for said appellants and had approximately fifty (50) persons working under him, and that his business was to take subscriptions under the name of National Literary Association and report them to Light and Hodge. On February 1, 1952, Mowry was engaged in such work in the Rochester, New York, area, and had custody of six (6) 1951 Chevrolets which he had leased through or from appellants. One of these cars was assigned to one Alton Bosworth and the keys thereto were entrusted to him with instructions that he should not give them out to anyone nor permit anyone else to drive the car. On January 31, 1952, these keys were in the possession of Bosworth. The witness (Mowry) and all his crew, including Bosworth, Charles Hopkins, and one Bennett stayed at the Powers Hotel in Rochester on the night of January 31st; that Bosworth reported for work on the morning of February 1, 1952, but Bennett and Hopkins failed to report and thereafter Mowry immediately called Federal and State police officers who searched Hopkins' luggage which was at the hotel. Bennett's bag or luggage was missing. Mowry further testified that there was only one set of keys to the automobile in question, which set was in Bosworth's possession; that Hopkins occupied the room with Bosworth the night before the disappearance of the automobile was reported. Mowry further testified that he has never seen Hopkins or Bennett since, and never had a report that either was ever located or that the automobile was ever located or found.

Richard Harrington, a witness for appellants, testified that he was general manager of National Literary Association and in such capacity had complete authority as to the operation of the Company. Thus he executed the lease of the automobiles to said company and superintended the activities of the partnership of Light and Hodge with reference thereto and its relations with the appellee; that after the execution of the agreement with appellee, the National Literary Association sub-leased certain automobiles obtained from appellee under the agreement to Carl Mowry. He further testified that prior to February 1, 1952, five or six automobiles were sub-leased to Mowry who returned all of them except one.

The complaint alleged that the reasonable value of the automobile at the time of the termination of the lease or agreement was $1700.00. The parties agreed that if appellee is entitled to recover in this action the amount of its recovery is the reasonable value of the automobile at the time of the termination of the agreement. However, the appellants contend that there was no evidence introduced in the lower court as to the value of the car at that time nor any evidence having any probative value as to the reasonable value of the car at any time. Appellants further contend that the evidence clearly shows that the car in question was stolen while the lease agreement was in effect and that the theft was not the result of negligence of anyone directly or indirectly responsible therefor. Appellants further contend there is no evidence in the record as to the date of the termination of the bailment and there was no duty on the part of appellants to return the car to appellee for the reason that it was stolen while the lease agreement was in effect.

Appellee contends that under the express terms of the lease appellants were bound to return the vehicle to appellee one year after October 30, 1951, in the absence of evidence that the vehicle had been driven 30,000 miles prior to that date, and that there was no such evidence, and that the bailment terminated when appellants failed to redeliver the chattel as provided in the contract between the parties. Appellee further contends that since there was a conflict in the evidence as to the fair market value of the automobile, the judgment of the court was obviously resolved in favor of the appellee inasmuch as appellee obtained judgment in the amount of $1325.00.

Finally, appellee further contended that there is no positive evidence to support the claim of appellants that the automobile was stolen.

It is contended by appellants that there is not...