Kendall v. City of Duluth

COLLINS, J. We construe the first paragraph of the third subdivision of the complaint as alleging that plaintiff furnished the undertaker’s wagon therein mentioned to defendant city for the purpose of conveying sick persons, afflicted with a contagious disease, to the pesthouse. The original taking for this certain purpose and use was therefore with the plaintiff’s consent. Then followed the allegation that the wagon was so used, and, further, that defendant had the wagon remodeled into an ambulance, and converted the same to its own use, and has ever since had and used said wagon. There was no allegation that a return had been demanded, or that defendant had used the wagon for any other or different purpose than that for which it was obtained, or that it was not still using it for the conveyance of sick persons to the pesthouse, or that it had done anything with it, except to remodel it into an ambulance and convert it to its own use. An ambulance is a wheeled vehicle used for the purpose of conveying sick or wounded persons. The wagon was obtained from the plaintiff for the agreed purpose of conveying sick persons, and, on the face of the pleading, it does not appear that the defendant has done any [296] thing except what it might lawfully do in order to render it suitable for the use consented to by plaintiff. The averment that defendant has converted the wagon to its own use must be read in connection with the balance of the allegations, from which it clearly appears that nothing has been done except to make the vehicle suitable for the use consented to by plaintiff when he furnished it, and then using it as agreed upon. Order affirmed.