Stines v. Dillman

• Decision Date: 03 March 1928
• Docket Number: No. 4390.,4390.
• Parties: STINES v. DILLMAN.
• Court: Missouri Court of Appeals

4 S.W.2d 477

STINES v. DILLMAN.

No. 4390.

Springfield Court of Appeals. Missouri.

March 3, 1928.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Carrie Stines against Arl J. Dillman. Judgment for plaintiff, and defendant appeals. Reversed.

McKay & Peal, of Caruthersville, for appellant.

J. E. Duncan, of Hayti, for respondent.

BRADLEY, J.

This cause was commenced in a justice of the peace court for the alleged conversion of an automobile. The cause reached the circuit court, where a trial to a jury resulted in a verdict and judgment for plaintiff, and defendant appealed.

Several assignments of error are made, but the only one we deem necessary to consider is the one based upon the alleged insufficiency of the evidence.

Defendant was engaged in the sale of gasoline, oils, tires, and tubes and in storing automobiles for hire. In March, 1924, plaintiff's automobile was stored in defendant's garage. Plaintiff testified that she talked with defendant's foreman, Maloure, about storing the automobile, and that Maloure said that:

"He would store it for me, and wouldn't charge me anything or he would sell it for me if they could, and, if they couldn't, they would keep it and take care of it for me; it was to be returned to me if it wasn't sold. They didn't have any time set to return it."

The automobile was to be returned to plaintiff when she wanted it.

About April 24, 1924, Autrie Bohanan, one of defendant's employees at the garage, took the automobile out of the garage to ascertain if it was in running order, and, when he had driven it for a few miles, it caught on fire, and was destroyed. Bohanan testified that he received a letter from plaintiff "wanting to know if I could bring the car to her in Memphis"; that plaintiff was to meet him in Memphis; and that he took the automobile out to ascertain if it was in condition to drive to Memphis.

Bohanan testified:

"She wrote me to bring it to her at Memphis. I wanted to know if it would go. I wasn't going that night, but was going to answer her letter and tell her when to meet me. She just asked if I would bring it to Memphis, and I didn't want to start out on two cylinders. That was all she asked me about the car."

The letter plaintiff wrote Bohanan was not in evidence. Plaintiff, regarding this letter, testified:

"I was in Mississippi about two months, and it was burned when I was away. I know a young man named Bohanan. I wrote him a letter. Yes, sir; I asked him to bring it down to me in Mississippi, but he never said if he would or not."

Plaintiff's theory, according to the instruction given for her, is that Bohanan, defendant's agent, at the time the automobile burned, was using it to deliver gasoline for defendant. The instruction, after predicating certain preliminary facts, reads:

"And that, while said automobile was so stored at defendant's garage, the defendant's agents and employees, while in the discharge of their duties as employees of defendant, took possession of plaintiff's automobile to deliver gasoline from defendant's filling station to any customer or place, without the knowledge and consent of the plaintiff, and that, while said automobile was being so used about the 24th day of April, 1924, it caught fire and burned up, if you so find these facts from the evidence in this case, then the defendant is guilty of conversion of plaintiff's automobile, and your finding shall be for the plaintiff."

The only evidence...