Opinion
October 19, 1928.
December 13, 1928.
Bailor and bailee — Garage — Automobile taken from by unauthorized person — Evidence — Case for jury.
In an action of assumpsit to recover damages to an automobile the extent of damages was not in dispute and the issue was whether or not the garage keeper had negligently permitted the car to be taken out by some unauthorized person. The evidence disclosed that the automobile was stored in defendant's garage for a consideration. The car was taken from the garage at night and later found abandoned in a badly damaged condition. The evidence was conflicting as to whether the automobile was taken by one of the plaintiffs or by some one else without authority. Under such circumstances the case was for the jury and a verdict for the plaintiff will be sustained.
Appeal No. 269, October T., 1928, by defendant from judgment of M.C., Philadelphia County, May T., 1927, No. 1167, in the case of Aaron Gordon and Abe Gordon, trading as A. Gordon Son, v. Isadore Gershman, individually and trading as Jackson Garage.
Before PORTER, P.J., HENDERSON, TREXLER, KELLER, LINN, GAWTHROP and CUNNINGHAM, JJ. Affirmed.
Assumpsit to recover damages to an automobile. Before KNOWLES, J.
The facts are stated in the opinion of the Superior Court.
Verdict for plaintiff in the sum of $524.61, and judgment thereon. Defendant appealed.
Errors assigned, among others, were the refusal of defendant's motions for judgment non obstante veredicto and for a new trial.
M.E. Maurer, and with him Edward Davis and Hirschwald, Goff Davis, for appellant, cited: Zell v. Dunkle, 156 Pa. 353; Logan v. Matthews, 6 Pa. 417; Duffy's Garage v. Sweeley, 66 Pa. Super. 583; Crocker-Wheeler Company v. Chester Steel Castings Company, 73 Pa. Super. 119; Crowley v. Snellenberg, 89 Pa. Super. 263.
W.T. Campbell, of Swartz Campbell, and with him Langdon W. Harris, Jr., for appellee.
Argued October 19, 1928.
This appeal was submitted without oral argument. The verdict establishes that defendant garage-keeper wrongfully permitted plaintiffs' car to be taken out at night by some unauthorized person who damaged it in an amount not disputed by the evidence. The repective contentions were adequately submitted to the jury. In affirming we need only paraphrase briefly what was said below in refusing defendant's motions for judgment n.o.v. and for a new trial.
Plaintiffs paid defendant for caring for the car; his duty therefore was to take such care of it as was ordinarily required in the circumstances; the evidence was that defendant's night man saw the car being taken out by a person who, as he thought, was one of plaintiffs; in identifying the person, the jury found the night man was mistaken and that the taking was without plaintiffs' authority. The car was abandoned, badly damaged; of course liability resulted: Underberg v. Stewart, 86 Pa. Super. 106, and cases there cited.
On this record the question concerning the ownership registration of the car is immaterial: Potamkin v. Express Co., 63 Pa. Super. 222; here the contract was with the three plaintiffs and the defendant. The fifth assignment does not merit discussion.
Judgment affirmed.