Aрpeal by tbe defendant from an order allowing certain amendments of tbe complaint and denying bim a new trial after verdict for tbe plaintiff for $2,489.50. Tbe material allegations of tbe complaint are, in effect, as follows:
Tbe Bfudson Thurber Company, being tbe owner of an automobile, insured tbe same in tbe plaintiff company against damage from collision, to tbe extent of its intrinsic value at tbe time of injury. Whilе tbis policy was in force, and in January or February. 1911, the insured delivered tbe car to the defendant in Minneapolis, who was carrying on tbe business of selling and repairing automobiles, for repairs, and while it was so in bis possession the machine was damaged by a collision caused by tbe defendant’s fault and negligence, and was thus practically destroyed. The amount of the loss was determined between tbe pаrties to tbe policy, at their request, by tbe defendant, with knowledge on bis part that be was thus selected to act as appraiser to ascertain tbe amount thereof and tbe extent of tbe liability of the insurer to tbe insured, tbe amount so determined and fixed by tbe defendant being $2,504.50, which sum, less $15 as provided in tbe policy, tbe plaintiff paid to tbe insured, and by such payment tbe plaintiff became, pursuant to tbe terms of tbe policy, subrogated, to tbe extent of such payment, to tbe rights of the insured with respect to their claim for damages, etc. Tbe complaint also contained a general allegation fоr damages in tbe sum of $2,489.50, and demanded judgment for $2,504.50.
Tbe answer admitted that tbe defendant was engaged in tbe business of repairing automobiles as alleged, but denied all of tbe other allegations of tbe comрlaint.
A consideration of tbe alleged errors perspectively requires a recital of tbe general course of tbe trial. Tbe plaintiff' first introduced evidence tending to support substantially all of tbe allegations of tbe complaint, except tbe alleged negligence of tbe defendant, and no specific objection was made to any of tbe plaintiff’s proofs on tbe ground of variance, and no motion was made whatever
The plaintiff, in rebuttal, introduced evidence to the effect that prior to the accident Murphy on one occasion remained out w'ith a car, trying it, from 6 to 9 o’clock p. m., and that the defendant had notice thereof. One of the witnesses described Murphy’s appearance before he became foreman, but while he was in the defendant’s employment, as follows, “He used to come in some mornings and look like he was half dead,” and with bloodshot eyes. Another of the defendant’s employees testified that he hаd observed that during business hours, prior to the accident, Murphy, while in the workshop, was sometimes sleeping in the back of the cars and under the same; and that the defendant, more than once in conversation, spoke about Murphy being a good man if he would not get intoxicated.
At the close of the testimony the court denied the defendant’s motion for a directed verdict, made substantially on the ground that it
The court, in its charge, to which no exceptions were taken, left it for the jury to say, as the sole question of fact for their determination, whether the defendant exercised ordinary care in permitting Murphy to act as foreman of the repair shop, under the facts and circumstances disclosed by the evidence; and contemporaneously with the consideration of the defendant’s motion for a new trial the court сonsidered and granted an application by the plaintiff for leave to amend the complaint in certain formal particulars, so that its allegations would conform to the proofs.
With the forеgoing résumé of the salient features of the case in mind, we will consider the sufficiency of the alleged errors as a basis for reversal; but it must be understood that we confine our observations to the theory upon which the case was submitted to the jury, expressing no opinion whether the trial court adopted the correct rule of law as applied to facts like those here presented.
1. The action is based upon an ordinary nongratuitous bailment, under which the plaintiff concededly stands in the shoes of the bailor under the doctrine of subrogation; and the defendant having admitted the receipt of the automobile and his inability to return it, a prima facie breach of the contract was established, to meet which it devolved upon the defendant to prove that he exercised ordinary care in kеeping the machine, and such as the nature of the bailment required him to exercise. Davis v. Tribune Co.
The defendant had the right to employ any one he chose to act as the foreman of his repair shop, but, so far as concerned third persons who delivered their property at the shop for repairs, it was his duty to exercise proper supervision; and if he had notice or knowledge— and we think it clearly appears from the evidence that he had such—
The defendant seeks to escape the force of this Tule by claiming, in his brief, that his foreman stole the machine, and that for such crime he (the defendant) cannot be held responsible. This proposition might be granted if it were sustained by the evidence; but such is not the case. There is no testimony to warrant the conclusion that Murphy intended to appropriate the machine to his own use, or to deprive the owner of his property therein; but, on the contrary, it appears that after the accomplishment of the legitimate purpose for which the car was taken out the most that was done, aside from its ultimate and accidental injury, was to use it in the course of a drunken escapade in and near the city.
And the defendant’s further contention that he should not be held liable for the acts of a foremаn who, at the time, was not acting in the line of his duty, nor as an employee, nor within the scope of his authority,- may likewise be admjttted as a general proposition; but ifche case is not thereby taken out of the operation of the rule stated. We think that the court correctly submitted the sole question mentioned, and that the jury’s determination thereupon should not be disturbed.
2. The defendant claims that the complaint states no cause of action. This point was not made on the trial, and cannot here be sustained ; for it is too late to urge the deficiencies, if any, claimed. 2 Dunnell, Minn. Dig. § 7726.
3. The fatal variance between the allegations of the complaint and the proofs is urged. As we understand the contention on this point, it is that the allegation was that the damage occurred “while said car was in the possession of said defendant,” and the testimony “showed that the car was not in the possession of the defendant at the
4. The defendant claims that the court erred in denying him the right to introduce evidence tending to shоw the value of the car at the time of the accident. We think, however, that it is too plain to justify discussion that the defendant was estopped by his conduct in acting virtually as appraiser between thе insurer and the insured in determining the intrinsic value of the car at the time of its injury.
Y. Nor do we find any merit in the defendant’s claim of error in the court’s refusal to strike out testimony, nor in allowing the amendment of the complaint; the latter contention being, in any event, error without prejudice, under our holding that the complaint stated a cause of action.
Order affirmed.