263 Pa. 351 | Pa. | 1919
Opinion by
This was an action of trespass for the alleged unlawful taking and use of a steam roller, plaintiff and defendant were separately engaged in road construction in Allegheny County, the former residing at Glenfield and the latter at Leetsdale. In the early fall of 1915, plaintiff went to California and returned in December. He was the owner of a large steam roller and before starting for California rented it to one Toner Barr for use on a certain road, which the latter was building near Leetsdale. It was stipulated that the roller should be in charge of George Lothamer who had previously operated it for plaintiff. At the same time defendant was constructing a small piece of road (20 x 30 feet in extent) near by, and desiring to use this roller telephoned Barr, who referred him to Lothamer. The latter arranged with defendant to roll the piece of road for fifteen dollars a day, being ten dollars for the machine and five dollars for the operator. The work was done and defendant paid Lothamer the entire bill, amounting to $51.25. Defendant was acting in good faith, having been informed by Barr and Lothamer that the latter had full charge and control of the roller.
Snow came as the work for defendant was completed and prevented the return of the roller to Glenfield. To avoid leaving it in the highway, where at night it must be protected by red lights, defendant consented that it be placed temporarily in his yard, which Lothamer did
This appeal by plaintiff is from the judgment entered for defendant on the verdict. The errors assigned are confined to certain parts of the charge; .we find nothing therein to justify disturbing the judgment. It was not error for the trial judge to explain to the jury the distinction between the common law actions of trespass and trover, and to state that the case seemed to include a charge of both. Nor was it error to state that the only evidence of an unlawful taking consisted in the fact that the roller was found in defendant’s possession, and that if the jury believed the evidence for defendant the taking in the first place was not unlawful. The testimony of Lothamer was in effect that he had entire charge of the roller, with the right to rent it for ten dollars a day. He is corroborated by Barr and to some extent by Manning, a witness for the plaintiff. On the basis of that evidence defendant was certainly not guilty of an unlawful taking. Lothamer was competent to testify as to his
As defendant never used the roller after it was placed in his yard, nor claimed title to it, nor refused to permit plaintiff to remove it, but returned it to him after suit was brought, the trial judge was right in holding that there was no evidence of a conversion.
The jury were instructed in substance that if defendant’s possession of the machine was unlawful he should pay for the use of it and for any damage it sustained while in his custody. However, as the verdict was for the defendant, instructions relating solely to the amount of damages are not important.
The assignments of error are overruled and the judgment is affirmed.