Valley Mercantile Co. v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 30 September 1914
• Docket Number: 3395.
• Citation: 143 P. 559,49 Mont. 430
• Parties: VALLEY MERCANTILE CO. ET AL. v. ST. PAUL FIRE & MARINE INS. CO.
• Court: Montana Supreme Court

143 P. 559

49 Mont. 430

VALLEY MERCANTILE CO. ET AL. v. ST. PAUL FIRE & MARINE INS. CO.

No. 3395.

Supreme Court of Montana

September 30, 1914

Appeal from District Court, Missoula County; John E. Patterson Judge.

Action by the Valley Mercantile Company and another against the St Paul Fire & Marine Insurance Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded with directions to dismiss the complaint.

William Wayne, of Missoula, for appellant.

Henry C. Stiff, of Missoula, for respondents.

HOLLOWAY J.

In November, 1910, the Valley Mercantile Company and Ralph C Stiff secured a policy of insurance upon their automobile. In April following, while the policy was in full force and effect, the owners placed the car in a paint shop in Missoula to be repainted, and while there it was taken by Ed. Le Vasseur and Victor Ellis, employés in the paint shop, and by them driven to De Smet and damaged. Under the terms of the policy the owners were insured against loss in excess of $25 on any single occasion, resulting from the theft of the automobile "by persons other than those in the employ, household, or service of the assured." Demand was made upon the insurance company for an amount sufficient to cover the loss, and, upon refusal, this action was instituted. The complaint, after formal recitals relating to the insurance, alleges that:

"The automobile * * * was, by some person or persons not in the employ of plaintiffs, nor in the household or service of plaintiffs or either of them, and without the consent and against the will and wish of plaintiffs, stolen and taken from the place where the same was at the time kept in the city and county of Missoula, state of Montana, and said automobile was, by the said person or persons so taking and stealing the same, injured and damaged in the sum and to the extent of $400."

Issues having been framed, the cause was tried to the court sitting with a jury. A motion for a nonsuit and a motion for a directed verdict were denied. Plaintiffs prevailed, and defendant has appealed from the judgment and from an order denying it a new trial.

But one assignment needs to be considered. If the evidence is sufficient to sustain the verdict, the slight errors occurring at the trial ought not to work a reversal of the judgment. If the evidence is insufficient, it is apparent that a new trial would be useless.

A day or two after the automobile was left in the paint shop Le Vasseur and Ellis, at the close of the working day, about 5 p. m., in the absence of the owner of the shop and without his knowledge or consent, or the knowledge or consent of the plaintiffs, or either of them, took the automobile from the shop, ran it to a point near De Smet, where an accident occurred which caused considerable damage to the car. A telephone message was sent to a public garage in Missoula for help, and James Hartley responded. When he reached De Smet he found Le Vasseur and Ellis at the broken car--the car headed toward Missoula--and they assisted him in towing it into the city and in replacing it in the paint shop. Both of these men continued to work at the shop for a considerable time after the injury to the car was discovered by the owners. The owner of the paint shop locked the front door--the only one through which the automobile could be moved--before he left the shop on the day in question. This was the only evidence which tended to characterize the taking at the time plaintiffs rested, and defendant interposed its motion for a nonsuit. On behalf of the defendant, Le Vasseur, one of the men who took the car, testified that it was taken only for a "joy ride" and without any intention of stealing it; that they intended to take a ride about Missoula and restore the car to the paint shop; that after they had reached a point a short distance beyond the station at De Smet they turned and started back to Missoula; that when opposite the station the car "blew up"; that they immediately telephoned in to the garage in Missoula and waited at the car until Hartley came for them. On cross-examination he testified that they secured gasoline to run the car from the paint shop; that it belonged to Wilburn who owned the shop, and was kept for cleaning and for cars in the shop that run short; that they left the shop with the car about 5:30 or 5:45, April 13th, in daylight, and were seen by employés of a nearby laundry, and that they took the car at a time when the owner of the shop and the owners of the car would not likely see them. With certain testimony touching the efforts of plaintiffs to effect a settlement, the foregoing is, in substance, all the evidence produced upon the trial of this...