Mehesy v. Mission Garage

WORKS, J.

This is an action for damages. Defendant, as its name implies, operates what is known as a public garage. Plaintiff engaged defendant to keep his automobile in its garage when the car was not in use, plaintiff to pay a monthly storage charge or fee for the service to be rendered. The obligation of defendant under the contract between the parties is shown by the uncontradieted testimony of plaintiff, as follows: “I told him,” an employee of defendant, “that I wanted the car left there and no one except myself or my wife or anyone that she brings in to drive the car for her when I am not there— ... I didn’t want anybody else to use that ear while I was not using it unless authorized by Mrs. Mehesy or someone with her. I made that statement to Mr. Wooten,” the employee. On a cer

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tain occasion, one Baker, a night man then in sole charge of the garage, permitted one Kohler to take the car from the place. It was damaged before its return to the garage, and it was to recover for this damage that the action was commenced. Plaintiff had judgment, and defendant appeals.

[1]

The first point made by appellant is that the evidence was insufficient to support a finding of the trial court to the effect, as stated in appellant’s brief, “that in breach” of the agreement between the parties “appellant wrongfully permitted Kohler to take the automobile from the garage on the occasion it was damaged.” The objection to this finding is twofold, the first assault being upon the ground that “the evidence was insufficient to establish that Kohler was not authorized by respondent to take the automobile from the garage.” The point is thus stated by appellant in order to attract attention to its view that the burden of proof was upon the respondent to show that Kohler did not possess the authority mentioned, and not upon appellant to show affirmatively that he did possess it. We proceed to discuss the question presented upon the theory, that appellant’s statement of this rule of evidence is cor-, rect. We state by way of premise, however, that, as is the ease whenever it is contended on appeal that a finding is not supported by the evidence, the finding now in question must be upheld if there is in the record any evidence substantially tending to support it. What, then, was the evidence