Mintz v. Audubon Ins. Co.
| Decision Date | 07 May 1962 |
| Docket Number | No. 439,439 |
| Citation | 140 So.2d 809 |
| Parties | Herbert MINTZ v. AUDUBON INSURANCE COMPANY, Mike Persia Chevrolet Company, Inc., and New Amsterdam Casualty Company. |
| Court | Court of Appeal of Louisiana — District of US |
Steeg & Shushan, Donald A. Meyer, New Orleans, for plaintiff-appellee.
Lemle & Kelleher, Paul B. Deal, New Orleans, for defendants-appellants, Mike Persia Chevrolet Co., Inc. and New Amsterdam Casualty Co.
Before YARRUT, SAMUEL and HALL, JJ.
Defendants appeal from a judgment awarding Plaintiff $171.75, the value of certain articles left in an automobile that was delivered to one of Defendants, Mike Persia Chevrolet Co., Inc., for servicing and repairs. Defendant referred to herein will be to Mike Persia Chevrolet Co., Inc.
It is not disputed that Plaintiff left an automobile with Defendant for servicing and minor repairs, which was to be returned to him the same afternoon. When Plaintiff called for the automobile that afternoon, he was advised that it had been stolen. The automobile alone was subsequently recovered. Plaintiff was an amateur radio repairman.
The value of the automobile is not at issue here, because Plaintiff did not own the automobile at the time, and the question of ownership is pending in the district court.
Defendant's liability as bailee for the loss of the automobile by theft is conceded. The only issue is whether Defendant had actual or constructive notice of the articles Plaintiff left in the automobile when it was delivered to Defendant's employee. The articles for which recovery was allowed by the district court are:
"Man's umbrella $ 15.00
Medicine Kit 5.00
Zenith Transistor Radio 56.00
Sheaffer Fountain Pen 10.00
Sun Glasses 15,75
Tool Kit for repairing radios and television sets 40.00
Hydraulic Pump 30.00
---------
Total $ 171.75"
Plaintiff testified the above articles were in the automobile when it was delivered to an employee of Defendant. Plaintiff received a written receipt for the automobile signed by 'Eddie,' identified as an employee of Defendant, no longer in its employ, and whose testimony was not taken. Plaintiff's testimony remains unchallenged that these articles were in the automobile when it was delivered to Defendant's employee.
Defendant's service manager testified that all customers were required to leave the keys in the automobiles, as it was necessary, from time to time, to move the cars to make room for others.
The relationship of Plaintiff and Defendant was that of depositor and depositary, and the liability of the latter is fixed by LSA-C.C. Arts. 2937 and 2939.
'The depositary is bound to use the same diligence in preserving the deposit that he uses in preserving his own property.'
'The depositary is not answerable, in any case, for accidents produced by overpowering force, unless he has delayed improperly to restore the deposit.'
The sole question here is whether or not, under LSA-C.C. Arts. 2932 and 2933, the depositary had actual or constructive notice that the articles were in the automobile when delivered to Defendant.
'The voluntary deposit takes place by the mutual consent of the person making the deposit and the person receiving it.'
'The voluntary deposit can only be regularly made by the owner of the thing deposited, or with his consent expressed or implied.
'Consent is implied when the owner has...
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...(terms which are used interchangeably in our jurisprudence). Neely v. Tamburello, La.App., 187 So.2d 526, 527; Mintz v. Audubon Insurance Company, La.App., 140 So.2d 809; Indiana Lumbermens Mutual Insurance Co. v. Humble Oil & Refining Co., La.App., 170 So.2d 264; Great American Indemnity C......
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