Truck Leasing Corp. v. Esquire Laundry & Dry Cleaning Co.

Citation252 S.W.2d 108
Decision Date06 October 1952
Docket NumberNo. 21736,21736
PartiesTRUCK LEASING CORP. v. ESQUIRE LAUNDRY & DRY CLEANING CO.
CourtCourt of Appeal of Missouri (US)

Reed O. Gentry, Rogers, Field & Gentry, Kansas City, for appellant.

White & Hall, Kansas City, for respondent.

BOUR, Commissioner.

This is an action to recover damages for an alleged breach of a written contract of bailment. The trial court rendered judgment for defendant and plaintiff appealed. Since the case was tried before the court without a jury, it will be reviewed upon both the law and the evidence as in suits of an equitable nature, and the judgment will not be set aside unless clearly erroneous. Sec. 114(d), p. 388, Section 510.310(4), RSMo 1949, V.A.M.S.

Plaintiff is a corporation engaged in the rental of trucks and other motor vehicles. Defendant is a corporation engaged in the laundry and dry cleaning business in Kansas City, Missouri. On June 19, 1948, these corporations entered into a written contract whereby plaintiff leased a certain Dodge truck to defendant and the latter agreed to pay plaintiff a weekly 'standby' charge of $18.40, plus five and one-half cents for each mile the truck was driven. After alleging the above facts and that section C, paragraph 2 of the contract provided that defendant agreed 'not to permit said vehicle to be driven beyond the limits of the greater Kansas City area, unless written permission of Lessor is first obtained, and then only at Lessee's own sole risk and expense,' plaintiff charged in its petition 'that during the time of said lease agreement, and while the aforesaid vehicle was in the possession of the defendant, by virtue of the terms of said lease agreement, said vehicle was caused to be driven beyond the limits of the greater Kansas City area to Columbia, Missouri in direct breach of the terms of said agreement, and while said vehicle was en route between Columbia, Missouri and Centralia, Missouri on Highway No. 63, said vehicle was wrecked and damaged in the sum of * * * $543.61'; that 'said damage directly resulted from the breach of the terms and provisions of said lease agreement'; that 'by reason of the breach of said agreement * * * plaintiff was caused to lose the use of said vehicle in its business and required to furnish another vehicle in substitution therefor, all to its damage in the sum of * * * $200.00.' Plaintiff prayed judgment for $743.61. A copy of the contract was attached to the petition.

Defendant admitted the corporate capacity of the parties; admitted that the parties entered into the written contract described in the petition; and denied all other allegations of the petition. No question has been raised as to the sufficiency of the pleadings.

It appears that under the terms of the contract it was the duty of plaintiff to service the truck and furnish storage space and all necessary license tags, to maintain the truck in good condition and repair, and to furnish all tires, tubes, gasoline and lubricants necessary for the operation of the vehicle. The contract further provided that 'all vehicles leased under this agreement shall be operated only by safe, careful and licensed drivers to be selected, employed and controlled by Lessee, said drivers being conclusively presumed to be agents of Lessee only * * *.' Other provisions of the contract will be referred to in the course of the opinion.

The evidence showed that after the parties executed the contract the Dodge truck was used by defendant for the collection and delivery of laundry and other articles. Plaintiff's garage and place of business was located in Kansas City, Missouri. Arthur Callies, a 'route man' selected and employed by defendant, began to drive the truck in September, 1948. He testified as a witness for plaintiff that in accordance with instructions given him by Mr. Epstein, defendant's general foreman, he would get the truck at plaintiff's garage about 6:45 a. m., drive it to defendant's plant where he would pick up laundry and the like and then deliver the same to customers; that after covering his route he would drive back to defendant's laundry, check in, and then return the truck to plaintiff's garage for service and storage until the following morning; that he usually completed his work about 4:00 or 4:30 p. m.; that he followed this procedure until the afternoon of November 20, 1948. He admitted that his route did not extend beyond the limits of Kansas City, Missouri, and that his duties did not require him to operate the truck outside the limits of that city.

Callies also testified as follows: On November 20, 1948, he went to plaintiff's garage about 6:45 a. m., got the Dodge truck and performed his usual duties until about 4:00 or 4:30 p. m., when he stopped to eat in a restaurant near defendant's laundry. While there he met a friend and 'on the spur of the moment' they decided to go to Columbia, Missouri to see Callies' estranged wife and try to effect a reconciliation. Callies did not return the truck to plaintiff's garage. Instead, he disconnected the speedometer and drove the truck to Columbia, where he learned that his wife had gone to Centralia, Missouri. He then drove towards Centralia on a two-lane highway, and while traveling around a curve at a speed of 45 to 50 miles an hour, he lost control of the truck. The truck left the road, turned over and was damaged. The accident occurred about 11:00 p. m., and no other vehicle was involved. Callies' friend did not testify.

Defendant states in its brief that the accident was caused by 'a defective tire which blew out.' The record shows that defendant attempted to prove by Callies, on cross-examination that a defective tire blew out, causing him to lose control of the truck. We need not summarize that part of Callies' testimony as it is not material to the issues in the case. It may be stated, however, that there is no testimony in the record from which it can be reasonably inferred that the tire in question was defective.

Concerning the trip described above Callies, on cross-examination, further testified:

'Q. Now you didn't get any permission from anyone at the Truck Leasing Company or anyone at the Esquire Laundry Company, did you? A. No.

'Q. And no one at either the Truck Leasing Company or the Esquire Laundry Company knew you were going, did they? A. No. * * *

'Q. The first that you told anybody about it was the next day when you called the Truck Leasing Company? A. That is right. * * *

'Q. And you weren't going down on this trip for any business of either the Truck Leasing Company or the Esquire Laundry Company? A. No.

'Q. It was purely your own private trip for your own private purpose? A. That is right.'

Daniel F. Bodney, a witness for defendant, testified that he was manager, and secretary and treasurer of defendant corporation; that in his capacity as manager he employed Callies as a route man for defendant; and continued: 'I explained to him that we were leasing the trucks and that he would have to pick up his truck at the Truck Leasing Company in the morning and when he was through at the end of the day to take the truck back there, that he couldn't take it anywhere, that he couldn't take it outside the city limits,' and that 'he couldn't take it anywhere for his own personal use.' He further testified that Callies made the trip in question without his knowledge or consent.

So much for the facts. While plaintiff has listed three separate points in its brief, they all amount to the contention that the court erred in rendering judgment for defendant. In view of the conclusions we have reached it will not be necessary to consider two of the points briefed by plaintiff.

As stated, section C, paragraph 2 of the contract of bailment provided that defendant agreed 'not to permit said vehicle to be driven beyond the limits of the greater Kansas City area, unless written permission of the Lessor is first obtained, and then only at Lessee's own sole risk and expense.' (Italics ours.) Plaintiff contends that there was a breach of this provision on November 20, 1948, when the truck was driven beyond the limits of said area without plaintiff's consent. Defendant denies that it violated the provision. In support of its position defendant argues, first, that in construing the contract the ordinary meaning of the verb 'permit' must be given effect; that this verb, in the ordinary sense, means 'to grant leave or permission by express consent or authority, and necessarily implies that the thing permitted was with the knowledge and consent of the permitting party'; that the undisputed evidence showed that 'the taking by the driver was without its knowledge or consent and contrary to express orders;' therefore 'defendant did not 'permit' the truck to be taken outside the Kansas City area.' Defendant cites Hill v. Montgomery, 352 Mo. 147, 176 S.W.2d 284, and Winslow v. Missouri, K. & T. R. Co., Mo.App., 192 S.W. 121. We have considered these cases, but they are not in point.

In 70 C.J.S., Permit, at page 565, it is stated: 'The verb 'permit' is derived from the Latin word 'permittere' which means to concede, to give leave, to grant * * *. It is a word in common and frequent use, of considerable elasticity, and lacking clear-cut and precise definiteness. It is not a technical word, and in English it has two significations * * *. In the first sense it means affirmative action, an authorization, being properly used with reference to permanent authority, and implying knowledge intention, and consent, although such rule is not without exceptions. In the second sense it means negative action, something less than consent, implying no affirmative act and involving no intent, but being mere passivity; abstaining from preventive action.' See Webster's New International Dictionary, 2 Ed.; Crabb's English Synonymes; 32 Words and Phrases, Permit, p. 144. While the word is one of variable meaning, it is said that every definition of the word includes knowledge...

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