Oliver Cadillac Co. v. Rosenberg

• Decision Date: 04 April 1944
• Docket Number: No. 26396.,26396.
• Citation: Oliver Cadillac Co. v. Rosenberg, 179 S.W.2d 476 (Mo. App. 1944)
• Parties: OLIVER CADILLAC CO. v. ROSENBERG.
• Court: Missouri Court of Appeals

179 S.W.2d 476

OLIVER CADILLAC CO. v. ROSENBERG.

No. 26396.

St. Louis Court of Appeals. Missouri.

April 4, 1944.

Rehearing Denied April 25, 1944.

Appeal from St. Louis Circuit Court; William B. Flynn, Judge.

"Not to be reported in State Reports."

Action commenced in a Justice of the Peace Court by Oliver Cadillac Company against Dr. Henry E. Rosenberg for damages to an automobile delivered by plaintiff to defendant's servants for his use while defendant's automobile was being repaired by plaintiff. Plaintiff recovered judgment in the justice court and on appeal in the circuit court, and defendant appeals.

Affirmed.

Henry S. Janon, of St. Louis, for appellant.

Moser, Marsalek & Dearing and Theo. J. Krauss, all of St. Louis, for respondent.

HUGHES, Presiding Judge.

The suit was instituted in a justice of the peace court, where after trial judgment was rendered for plaintiff and defendant appealed to the Circuit Court, where it was tried before the court and a jury, resulting in a verdict in favor of plaintiff in the sum of $616.25. After unavailing motion for new trial, defendant appealed to this court.

Plaintiff filed a statement or petition in the justice court, alleging that on or about the 14th day of November, 1937, plaintiff delivered to defendant's agent and servant a 1935 La Salle touring sedan for the sole use and benefit of defendant while defendant's automobile was being repaired by plaintiff; that defendant agreed to return said touring sedan in the same condition that it was at the time it was delivered to him, excepting normal wear and tear; that defendant failed to return plaintiff's automobile in the same condition it was at the time it was entrusted to him, and, on the contrary, returned it in a badly damaged condition, the damages amounting to $576.50; that plaintiff, the bailor, had made demand upon defendant, the bailee, in the amount of $576.50 for breach of the contract of bailment, but bailee refused to pay the same; and plaintiff asked judgment for $576.50 and interest from the date of the institution of the suit, July 20, 1938. There was no pleading filed by defendant.

Plaintiff's witness, Edward W. Davis, testified that about the middle of November, 1937, at which time he was in plaintiff's employ, defendant's colored houseman or chauffeur, named Nevar, brought defendant's car to the Oliver Cadillac Company for repairs. Witness said, "After speaking with Nevar I telephoned Dr. Rosenberg and told him that Nevar had said that the doctor and his family required an automobile because their car was to be repaired, and the doctor confirmed that they required the use of a car during the period of repairs. At that time I did not talk with him about the use of this particular La Salle touring car which we were going to loan him during the period of repairs. I got the necessary permission from my superior at Oliver Cadillac Company and I gave Nevar the car and he drove it away. I can't remember having any conversation with Mrs. Rosenberg about the use of a car." He further said that he saw the car the following Monday, at which time it was in a damaged and wrecked condition; that the car was in good condition when it was delivered to Nevar and its reasonable value was between $575 and $625, but it was only worth about $100 when it was returned. That used cars, such as this, have from one to six keys, and whatever keys there were with the automobile at the time it was delivered to Nevar were turned over to him at that time. He further said, "When somebody would come in with a repair job to an automobile that would take a few days to repair, the practice was for the Oliver Cadillac Company to let them use a used car during the period of repairs; not in all cases, but it was generally done in emergency cases. We were in the business of repairing automobiles, and we had several used cars on hand which we weren't using at the time, and my company was interested in getting the repair jobs on La Salles and Cadillacs. We didn't loan out cars promiscuously; in those cases where the customer wanted the use of a car during that period when he had his car at our place or was bringing his car to our place for repair, then we would let him use a car. The loaning of cars was limited to people who brought cars into our place for repair of their car."

On cross-examination witness Davis said that he did not know what the doctor done with the automobile when it was in his possession; that he went to East St. Louis to get a report about the accident three or four days later, and learned that the colored boy took the car from where it had been parked and was alone when the accident occurred.

The defense testimony was to the effect that on Friday afternoon Nevar brought the 1935 La Salle touring sedan directly from plaintiff's shop to defendant's garage and gave defendant's wife the key to the car. Defendant's wife doesn't drive and she gave the key to her husband the next morning (Saturday). That Saturday afternoon a telephone appointment had been made with some friends, the Rosenbaums, to visit a mutual friend, the Schecters, at East St. Louis. Nevar overheard the conversation and asked Mrs. Rosenberg (defendant's wife) if he could go along to East St. Louis, as he wanted to visit some friends (or relatives) in East St. Louis. She replied that he'd have to ask her husband about that. Nevar was through work that Saturday evening after supper, between 5:30 p. m. and 6 p. m., and was to report back to work at the Rosenberg home the following Monday morning about 8 a. m. He lived away from the Rosenberg home. After completing his work that Saturday evening, he dressed and waited until Dr. Rosenberg returned from his office that evening, and asked Dr. Rosenberg if he could get a ride to East St. Louis, as he desired to visit some friends (or relatives). Dr. Rosenberg answered affirmatively. The Rosenbaums, as per arrangement, were already at the defendant's home when he arrived at his home that evening, and they all got into the car, the defendant driving, Nevar sitting up front next to the defendant, and Mr. and Mrs. Rosenbaum sitting in the back seat with the defendant's wife. The ride to the Schecter home was uneventful, and the defendant parked the car at the curb in front of the Schecter home in East St. Louis, closed the windows of the car, locked the door with the key and put the key in his pocket. Nevar said good-by and went on his way. The Rosenbergs and Rosenbaums went upstairs to the Schecter home, which was the upstairs apartment of a flat. About an hour later the Schecter doorbell rang and Mr. Schecter answered the bell and then called the defendant down. There the defendant saw a police officer and Nevar, who was bleeding, and the police officer asked defendant where his car was, and defendant answered that it was right out in front, but in looking saw that the car was not there. The defendant showed the car key to the police officer and Nevar told them that he had a duplicate key. Defendant went to the scene of the accident, quite some distance away from the Schecter home, and saw the other car involved in the accident; its front part was damaged. The defendant then phoned plaintiff and reported the accident to them, advised them what happened and where their car was, and they said they would come and get it.

The defendant testified that he did not know that Nevar had a duplicate car key; that he did not give Nevar permission to open the car, nor to drive same, nor was Nevar going on any business for him, nor was Nevar performing any duties for him. The doctor's medical kit was in the car and the doctor had left instructions at his home that if there were any phone calls for him to tell the person to call at the Schecter telephone number, and if defendant was required to make any professional calls that evening the car and the medical kit were available to enable him to make them. Defendant expected to remain at the Schecter home that evening until about midnight, and no arrangements were made to drive Nevar back to St. Louis, nor was defendant expecting to do so. The police at East St. Louis arrested Nevar.

Appellant contends that its demurrer to the evidence should have been given because the petition counted on an express contract of bailment whereby the liability of appellant as bailee was enlarged to virtually that of an insurer, whereas the evidence wholly failed to prove any such agreement.

In determining the class to which an action belongs, that is, whether it is founded on contract or tort, or whether the defendant's liability is that of an insurer under the terms of a special contract, or is for negligence, and if for negligence whether defendant's duty was to use ordinary care or a high degree of care, are questions not always simple and easy to answer. The primary test to determine such question is a resort to the pleadings. However, this test is not always satisfactory, and especially so where the question, as in this case, is first raised after trial. After the case is tried, even on...