Morrow, Inc. v. Paugh, 18022

• Decision Date: 01 May 1950
• Docket Number: No. 18022,18022
• Citation: 91 N.E.2d 858,120 Ind.App. 458
• Parties: MORROW, Inc. v. PAUGH.
• Court: Indiana Appellate Court

Page 858

91 N.E.2d 858

120 Ind.App. 458

MORROW, Inc. v. PAUGH.

No. 18022.

Appellate Court of Indiana, in Banc.

May 1, 1950.

Frank H. Hatfield, Isadore J. Fine, Joe S. Hatifield, Charles H. Sparrenberger, Evansville (Edward E. Meyer, Evansville, of counsel), for appellant.

Darby & Fitzgerald, Evansville, Ewing E. Wright, Osgood, for appellee.

ROYSE, Judge.

On April 2, 1946 appellee and appellant entered into the following agreement:

'Truck Lease

'This Agreement by and between Raymond Paugh of Versailles, Ind. Lessor, and Morrow, Inc. of 1811 Pennsylvania, Evansville, Ind. Lessee.

'Witnesseth:

'1. The lessor hereby leases to the lessee the following described motor vehicle equipment:

                Tractor No.  Tailer No.   Truck No.   License No
                Ford         Trailmobile             Ind. 5153-1946
                

Wherever it (or they) may be, (a) for a period of commencing at the 2nd day of April, 1946, and expiring at the 3rd day of April, 1946, (b) for a period of one trip from Chicago, Ill to Washington, Ind expiring when the delivery is completed pursuant to shipping instructions.

'2. The lessor will furnish for operation of the said vehicle or vehicles the required lubricants and fuel and will also furnish one or more competent drivers as may be the case.

'3. During the period of this lease the said vehicle or vehicles shall be solely and exclusively under the direction and control of the lessee who shall also be liable to the shipper or consignee for any loss, damage or unreasonable delay of the cargoes, for any property damage that may be caused by the operation of the said vehicle or vehicles by the lessee, and for any public liability resulting from the said operation by the lessee, subject to such, if any, rights or subrogation which the insurance companies of the lessee may have under the circumstances.

'4. Upon the expiration of this lease possession of the vehicle or vehicles will promptly be restored to the lessor in as good condition as when received by the lessee, ordinary wear and tear excepted.

'5. In consideration of the foregoing, lessee agrees promptly to pay to the lessor and the lessor agrees to accept as hire of the said equipment and reimbursement for the services of any driver or drivers the following compensation:

'To be paid $4.50 per ton on 20,500 $46.12 advanced $20.00 bal of $26.12 to be paid at Chicago on presentation of trip lease and bill properly signed

'Signed in duplicate this 2nd day of April, 1946

'Signed Raymond Paugh Lessor

Morrow, Inc. Lessee

By . . /s/ J. E. Seymour.'

Pursuant to the terms of this lease appellee personally loaded the truck in Chicago, as directed by appellant, and started for Washington, Indiana. Enroute the truck was in collision with an automobile on U. S. Road 52 near Templeton. As a result of the collision the truck was destroyed by fire.

Subsequently, appellee brought this action against appellant for damages sustained by him in the loss of the truck. The complaint alleged the execution of the foregoing lease and that while appellee's truck was being used on the trip it was destroyed by fire, all without fault on the part of appellee. Appellant filed its answer in three paragraphs, the first, admission and denial under the rules. It denied the allegations averring the execution of the lease, but admitted it was signed by the parties. The second charged an abandonment of the lease; that the truck was never operated under the lease; that appellee elected to retain possession of the truck and instead of furnishing a driver drove the truck himself; that the truck was never delivered to appellant and was never in its possession, and therefore it could not return it to appellee. The third averred appellee was instructed by appellant that its permit in interstate carriage was limited to Federal Highway 41 in Indiana, and directed appellee to use said highway, which instructions he failed to obey, and in violation thereof left said highway and transferred to Federal Highway 52 where the accident which destroyed the truck occurred. It further avers that by reason of the accident said transportation was never completed, the cargo never delivered, and the contract of transportation never performed, etc.

After reply by appellee the cause was tried to a jury which returned a verdict in favor of appellee for $3630. Judgment accordingly. The error assigned here is the overruling of appellant's motion for a new trial. This motion questions the sufficiency of the evidence and the legality of the verdict, also the giving of certain instructions.

Appellant first contends the contract sued, while entitled a 'Truck Lease', was, by its terms, a contract of bailment. It bases this contention on the provision requiring that possession of the vehicle be restored to the lessor.

In reply to this contention appellee asserts the record conclusively shows that appellant, at no time, either in the pleadings, in the evidence, or in any other manner, defended this action on the theory the contract is one of ordinary bailment. He says, therefore, appellant adopted his theory of liability under the terms of the agreement.

It is essential in bailment that there be a delivery of the property to the bailee. 6 Am.Jur. 140, § 4; 8 C.J.S., Bailments, § 1, p. 222. By its pleadings appellant denied it had received the property. Strictly speaking, the letting of all personal property is a bailment. 35 C.J. 954, § 9. Regardless of what it is termed, the rights and liabilities of the parties are to be determined by the terms of the contract they made. 6 Am.Jur....