Chastek v. Albertson

JAMES, J.

Appeal by defendants from a judgment entered in favor of the plaintiffs by which an award was made for the value of an automobile.

In the complaint it was alleged that appellant Albertson was engaged in business under the name of Albertson Motor Company; that plaintiff Chastek was the owner of an automobile. This allegation followed: “That at the city of Los Angeles, state of California, and on or about the fourth day of May, 1918, the plaintiff Marion W. Chastek, at the special instance and request of the defendants, and each of them, placed the said automobile in the possession of the defendants, and each of them, as bailees, and subsequently thereto on the samé day plaintiff Marion W. Chastek demanded the return of the said automobile of the said defendants, and each of them, and the defendants, and each of them, failed, neglected and refused and still fail, neglect and refuse to return the said automobile to plaintiff Marion W. Chastek to the damage of the plaintiffs in the sum of $574.” There was the further allegation that prior to the commencement of this action Chastek had assigned to his coplaintiff a one-half interest in the claim; and the prayer was for the recovery of $574. Defendants, after making denial of the material allegations of the complaint, further answered, alleging that at the request of Chastek, defendants had taken possession of the automobile described in the

[790]

complaint for the purpose of examining and appraising the same and determining the amount that they would allow as a credit in part payment on a new motor car which plaintiff Chastek. contemplated buying from defendants. The defendants alleged that while the automobile was in their possession for the purposes last set forth, the same was, without fault or negligence on their part, stolen and taken from their possession. In determining the first point as to whether the judgment is warranted by the evidence, we will consider the testimony, as we must, in its most favorable aspect toward the plaintiffs.

[1]

The plaintiff testified that he went to the place of business of the defendants with the idea of purchasing an automobile of which the defendants were the vendors; that he desired to “turn in” the Ford automobile which he owned, and defendants desired to “try out” the Ford automobile before finally determining what allowance would be made as a credit on the purchase of the machine which they were seeking to sell to the plaintiff. Plaintiff testified, in part, as follows: ‘1 When I came to Albertson’s place of business I locked the car. When Hr. Hoover took the car to try it out I handed him the key. I don’t think I unlocked the car for Mr. Hoover. I handed Mr. Hoover the key. Mr. Rail, the salesman, suggested that Mr. Hoover, the appraiser, try the Ford out, to see if they could allow me more than $450. So Mr. Hoover took the Ford in order to appraise it. I saw Mr. Hoover leaving the place of business with my car, and I saw him again that day after the machine was stolen, when he came back to the Albertson Motor Company.” On the part of the defendants, Hoover, the appraiser, testified that he took Chastek’s machine, ran it into the central portion of the city of Los Angeles, and left it at the curb while he entered an office building to interview a man who desired to buy a Ford automobile of similar style and equipment to that of the plaintiff; that he was gone five or six minutes; when he returned the machine had been stolen. He testified further: “I don’t know whether Mr. Chastek gave me the key to the car,— either he gave me the key or else he had left the car unlocked, because it was a Rex lock, and you can’t take the key out unless you locked the car; so he either left it unlocked while he was there or else he gave me the bey. I