Whittaker v. Kirchman

Hart, J., (after stating the facts). It is earnestly, insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict. We cannqt agree with counsel in this contention. In Bussy v. Hatch, 95 N. J. L. 56, 111 Atl. 516, it was held that a garage keeper, to -whom an automobile was delivered for storage under a simple contract of bailment, is liable for damages resulting from the freezing of water in the car while it was in storage, especially where an express agreement to maintain sufficient heat in the garage to prevent freezing was made. The failure of the garage keeper, in the respect mentioned, was considered negligence on his part. The same rule holds here. According to the evidence for the plaintiff, he carried his car to the garage of the defendant and asked him to put alcohol in its radiator to prevent it from freezing. The defendant had been accustomed to perform this service for the plaintiff. About one week after this time the radiator of the plaintiff’s car froze, and it cost him $136.30 to repair the same. This made out a prima facie case of liability against the defendant. It is true that the defendant denied that he had agreed to fill the radiator of the car of the plaintiff with alcohol, but this disputed question of fact was submitted to the jury under proper instructions, and, under our settled rules of practice, this court must uphold the verdict of the jury. It is next insisted by counsel for the defendant that, the court erred in refusing to submit his theory of the case in instruction No. 2, given to the jury over his objection, at the request of the plaintiff. According to the evidence for the defendant, the alcohol would boil away if the car was used a great deal, and it would be necessary to replace the alcohol at intervals, in order to prevent freezing. In the instruction complained of the court told the jury that, even if it should find that the defendant did put alcohol in the radiator of the car, if the quantity was insufficient to prevent freezing, the plaintiff would be entitled to recover, unless precluded by other instructions given to the jury. No specific objection was made to this instruction. It is a matter of common knowledge that the court cannot at all times submit the theories of both parties on the facts of the case in on'e instruction. In the case at bar, when the instructions are read and considered as a whole, it will be seen that this theory of the defendant was submitted .to the jury in other instructions given by the court. The verdict of the jury was in favor.of the plaintiff for the full amount sued for, and it is evident that the jury rejected the theory of the defendant that he had attempted in any wise to comply with the request of the plaintiff to fill the radiator of the new Dodge touring car in order to prevent freezing. It was next insisted that the court erred in the admission of evidence before the jury. Gr. H. Wright was a witness for the plaintiff. According to his testimony, he was foreman of the garage company which repaired the Dodge car in question after its radiator had frozen. According to his testimony, he examined the car minutely and saw what parts were needed to repair it. He gave the order to the mechanics in the shop for the necessary repairs, and placed his initial “W” on the written order. He oversaw the labor of repairing it. The itemized account of the repairs and the cost of making them was introduced in evidence. Under the circumstances of the case, there was no error in this. The witness was satisfied from his own personal knowledge, after looking at the account, that the repairs mentioned were necessary to restore the car to its former condition. It is not claimed that the price charged was exorbitant. It will be noted that the witness placed his initial “W” on the repairs necessary to be made. It was not necessary that the writing should have been made by the witness himself, and, while the better practice would be to have permitted the witness merely to use the writing for the purpose of refreshing his memory, as held in Bowden v. Spellman, 59 Ark. 251, 27 S. W. 602, still no prejudice, in this case, could have resulted to the defendant from the introduction of the account itself. As we have already seen, the witness had written down the repairs which were necessary to be made, and had placed his initial “W” on the writing. No claim whatever is made that the price of the repairs is unreasonable. It follows that the judgment must be affirmed..