Travelers Indemnity Company v. Fawkes
| Decision Date | 24 January 1913 |
| Docket Number | 17,822 - (156) |
| Citation | 139 N.W. 703,120 Minn. 353 |
| Parties | TRAVELERS INDEMNITY COMPANY v. LESLIE H. FAWKES |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover $2,504.50. The substance of the complaint and answer will be found in the second and third paragraphs of the opinion. The case was tried before Waite, J., and a jury which returned a verdict for $2,489.50 in favor of plaintiff. At the hearing of defendant's motion for a new trial plaintiff moved in open court to be allowed to amend its complaint. The court allowed the amendments and denied the motion for a new trial. From an order denying defendant's motion for a new trial and allowing plaintiff's motion to amend the complaint defendant appealed. Affirmed.
Contract of bailment -- evidence of breach.
Where in an action by the bailor against the bailee upon an ordinary contract of nongratuitous bailment, the defendant admitted the receipt of the property and his inability to return it, a prima facie breach of the contract was thereby established, to meet which it devolved upon the defendant to prove that he exercised ordinary care in keeping the property.
Care required of bailee.
Where the proprietor of an automobile repair shop had notice that his foreman was possessed of proclivities rendering it likely that he would injure cars left at the shop for repairs, by taking them out at improper times and making unauthorized use of them, it was such proprietor's duty to exercise ordinary care to protect such cars from the danger of injury to which they were thus subjected.
Retaining servant -- question for jury.
Action of the court, in an action for injury to an automobile in a collision which occurred while the foreman of the defendant's repair shop was using it for his own private purposes, in submitting to the jury the question as to whether the defendant was guilty of negligence in retaining such foreman in his employment, sustained.
Objection to complaint too late.
Contention that the complaint failed to state a cause of action held, in any event, too late when made for the first time on appeal.
Harmless variance.
Where the facts litigated were known to the defendant, a variance, if any, between the plaintiff's complaint and his proofs held harmless.
Estoppel by conduct.
Where the defendant in an action for injury to an automobile had acted virtually as appraiser between the plaintiff, an insurance company, and the owner of the machine, and the plaintiff had paid the owner the amount of the loss fixed by such appraisement, the defendant was estopped to introduce evidence as to the value of the machine.
No error.
Other claims of error considered, and held to be without merit.
Larrabee & Davies, for appellant.
Keith, Evans, Thompson & Fairchild, for respondent.
Appeal by the defendant from an order allowing certain amendments of the complaint and denying him a new trial after verdict for the plaintiff for $2,489.50. The material allegations of the complaint are, in effect, as follows:
The Hudson Thurber Company, being the owner of an automobile, insured the same in the plaintiff company against damage from collision, to the extent of its intrinsic value at the time of injury. While this policy was in force, and in January or February. 1911, the insured delivered the car to the defendant in Minneapolis, who was carrying on the business of selling and repairing automobiles, for repairs, and while it was so in his possession the machine was damaged by a collision caused by the defendant's fault and negligence, and was thus practically destroyed. The amount of the loss was determined between the parties to the policy, at their request, by the defendant, with knowledge on his part that he was thus selected to act as appraiser to ascertain the amount thereof and the extent of the liability of the insurer to the insured, the amount so determined and fixed by the defendant being $2,504.50, which sum, less $15 as provided in the policy, the plaintiff paid to the insured, and by such payment the plaintiff became, pursuant to the terms of the policy, subrogated, to the extent of such payment, to the rights of the insured with respect to their claim for damages, etc. The complaint also contained a general allegation for damages in the sum of $2,489.50, and demanded judgment for $2,504.50.
The answer admitted that the defendant was engaged in the business of repairing automobiles as alleged, but denied all of the other allegations of the complaint.
A consideration of the alleged errors perspectively requires a recital of the general course of the trial. The plaintiff first introduced evidence tending to support substantially all of the allegations of the complaint, except the alleged negligence of the defendant, and no specific objection was made to any of the plaintiff's proofs on the ground of variance, and no motion was made whatever based on the pleadings during the trial, except as hereinafter mentioned. Nor did the defendant introduce any proofs materially contradicting those of the plaintiff, his proofs being practically confined to evidence tending to show that one Murphy had been since the fall of 1910, and was up to the time of the injury complained of, the foreman of his repair shop; that after some repairs had been made on the machine, but before the same were completed, Murphy took the machine out on the street to test it; and that after such trial had been made, and without the knowledge of or authority from the defendant, Murphy proceeded to run the care solely for his own pleasure and that of his friends during the night, imbibing intoxicating liquors meanwhile, until the accident. The defendant also introduced evidence tending to show that prior to the night of the collision...
To continue reading
Request your trial