liability.

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Supp. 830; 14 R. C. L. 812; 3 R. C. L. Supp. 295; 4 R. C. L. Supp. 921; 5 R. C. L. Supp. 780; 6 R. C. L. Supp. 834.] Appeal, § 777 — admission of evidence absence of error.

4. In an action to recover the cost of repairs to an automobile made necessary by breach of contract to place alcohol in it to prevent freezing, the admission in evidence of the itemized account of the repairs and the cost of making them is not error, where the foreman in charge of the work testified that he directed and supervised the repairs, and initialed the account although he did not prepare the statement himself.

Statement by Hart, J.:

William Kirchman sued L. A. Whittaker to recover $136.30, which he claims to be due him on account of the negligence of the defendant.

in failing to put alcohol in the radiator of his new Dodge touring car as he had agreed to do.

According to the testimony adduced in favor of the plaintiff, he

lives in Van Buren, Crawford county, Arkansas, and on the 11th day of December, 1924, he drove his new Dodge touring car with wood wheels to the garage of L. A. Whittaker, and asked him to put alcohol in its radiator for the purpose of preventing it from freezing. The defendThe defendant had been accustomed to perform this service for the plaintiff. The plaintiff relied upon the performance of the service by the defendant and drove his car home, thinking it had been supplied with alcohol to prevent freezing, as requested. On the 19th day of December, 1924, the plaintiff attempted to drive his car and found that it had frozen, which caused a break in the radiator. The repairs necessary to restore the car to its former condition cost the plaintiff $136.30, which was the usual price for such repairs.

On cross-examination, the plaintiff admitted owning a Dodge car of an older model which had disc wheels, but denied that this was the car which the defendant agreed to put alcohol in, in order to prevent the radiator from freezing.

According to the testimony of G. H. Wright, a witness for the plaintiff, he was foreman of the mechanical department of the Martin-Ross Motor Company, and was called in December, 1924, to get the Dodge touring car in Van Buren, Arkansas, for the purpose of examining it and making the necessary repairs on it. Upon examination of the car, he found that the whole top and back radiator was frozen up, and that the block was frozen solid. The witness was familiar with the effect of alcohol as an antifreeze mixture and had worked on Dodge cars for four years. He could tell by examination that no alcohol had been put in the radiator of the car. The water was frozen solid and he could tell that no alcohol had been placed in it. He was overseer of the repair work on the car. After examining the car, he wrote an order stating the work to be done and turned it over to the mechanics who did the work. The witness supervised the repair work

on the car and placed his initial, "W," on the work to be done.

According to the evidence for the defendant, he did not agree to put alcohol in the new Dodge touring car of the plaintiff to keep the radiator from freezing, but did agree to put alcohol in an old Dodge car with disc wheels, belonging to the plaintiff, to keep the radiator in it from freezing, and performed this service for the plaintiff, according to agreement.

The jury returned a verdict for the plaintiff in the sum of $136.30, and from the judgment rendered, the defendant has duly prosecuted an appeal to this court.

Mr. Roy Gean, for appellant:

Under all the testimony offered by plaintiff, if true, he has not shown by a preponderance of the evidence that the proximate or efficient cause of the damage, if any, to damage, if any, to his new Dodge touring car, resulted from the failure of defendant to place alcohol in its radiator.

James v. James, 58 Ark. 157, 41 Am. St. Rep. 95, 23 S. W. 1099; St. Louis, A. & T. R. Co. v. Neel, 56 Ark. 279, 19 S. W. 963; Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 31 L.R.A. (N.S.) 1020, 133 S. W. 816; Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 18 L.R.A. (N.S.) 905, 113 S. W. 647; Emerson v. Turner, 95 Ark. 597, 130 S. W. 538.

Mr. George G. Stockard for appellee.

Hart, J., delivered the opinion of the court:

It is earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict. We cannot agree with counsel in this contention. In Bussy v. Hatch, 95 N. J. L. 56, 111 Atl. 546, it was held that a garage keeper, to whom an automobile was delivered for storage under a simple contract of bailment, is liable for damages resulting from the freezing of water in the car while it was in storage, especially where an express agreement to maintain sufficient heat in the garage to prevent freezing was made. The failure of the garage keeper, in the respect men

Appeal-con

-effect.

proper instructions, flicting evidence and, under our settled rules of practice, this court must uphold the verdict of the jury.

It is next insisted by counsel for the defendant that the court erred in refusing to submit his theory of the case in instruction No. 2, given to the jury over his objection, at the request of the plaintiff.

According to the evidence for the defendant, the alcohol would boil away if the car was used a great deal and it would be necessary to replace the alcohol at intervals, in order to prevent freezing. In the instruction complained of, the court told the jury that even if it should find that the defendant did put alcohol in the radiator of the car, if the quantity was insufficient to prevent freezing, the plaintiff would be entitled to recover, unless precluded by other instructions given to the jury. No specific objection was made to this instruction. It is a matter of common knowledge that the court cannot at all times submit the theories of both parties on the facts of the case in one instruction.

In the case at bar, when the instructions are read and considered

the jury was in favor of the plaintiff for the full amount sued for, and it is evident that the jury rejected the theory of the defendant that he had attempted in any wise to comply with the request of the plaintiff to fill the radiator of the new Dodge touring car in order to prevent freezing.

It was next insisted that the court erred in the admission of evidence before the jury. G. H. Wright was a witness for the plaintiff. According to his testimony, he was foreman of the garage company which repaired the Dodge car in question after its radiator had frozen. According to his testimony, he examined the car minutely and saw what parts were needed to repair it. He gave the order to the mechanics in the shop for the necessary repairs and placed his initial, "W," on the written order. He oversaw the labor of repairing it. The itemized account of the repairs and the cost of making them was -admission of introduced in evi- evidence-abdence. Under the circumstances of the case, there was no error in this. The witness was satisfied from his own personal knowledge, after looking at the account, that the repairs mentioned were necessary to restore the car to its former condition. It is not claimed that the price charged was exorbitant.

sence of error.

It will be noted that the witness placed his initial, "W," on the repairs necessary to be made. It was not necessary that the writing should have been made by the witness himself, and, while the better practice would be to have permitted the witness merely to use the writing for the purpose of refreshing his memory, as held in Bowden v. Spellman, 59 Ark. 251, 27 S. W. 602, still no prejudice, in this case, could have resulted to the defendant from

the introduction of the account itself. As we have already seen, the witness had written down the repairs which were necessary to be made and had placed his initial,

"W," on the "W," on the writing. No claim. whatever is made that the price of the repairs is unreasonable.

It follows that the judgment must be affirmed.

This annotation is supplemental to those in 15 A.L.R. 681, and 42 A.L.R. 135.

The cases found since those annotations are in harmony with the decisions therein.

Thus, in the reported case (WHITTAKER V. KIRCHMAN, ante, 316) it was held that failure of a garage keeper to place alcohol in the radiator of a car to keep it from freezing, he having been accustomed to do this service for the owner of the car, was negligence and made out a prima facie case against him.

Where the owner of an automobile had placed it in charge of a garage keeper, and had at no time authorized any employee of the garage keeper to take out his car, but in fact had given explicit directions that no one should be allowed to touch the car, or even to wash it, the negligence of the caretaker of the garage in allowing the car to be taken out, during which time it was damaged, must be imputed to the garage keeper as if it were the garage keeper's own act. Underberg v. Stewart (1925) 86 Pa. Super. Ct. 106.

on such evidence a nonsuit was properly denied.

And where one left his car in a garage, with a person unidentified, the presumption is that such person was the agent of the garage keepers, and authorized to accept the car for storage, and a subsequent sale of the car for storage by a purchaser of the garage without the statutory notice to the owner, who had given his address when he left, will render the garage keeper and his purchaser guilty of conversion, and liable for the cost of the car. Herschenhart v. Mehlman (1925) 125 Misc. 887, 213 N. Y. Supp. 48.

And in Williams v. H. L. Weil Co. (1924) 1 La. App. 188, supra, it was held that a bailee or depositor could not, by a notice posted on the wall of his garage stating that cars and contents were stored at the owners' risk, or, in fact, in any other manner, exempt himself from the responsibility for his own lack of care or prudence.

But a car owner who had the employee in charge of a garage drive him home, in the absence of evidence that this was done with either the knowledge, sanction or authority of the owner of the garage, accepted such service at his own risk, and while so acting the employee was the agent of the owner of the car, and not of the garage keeper, and the latter was not responsible for the subsequent loss of the car, there being no evidence that the car was ever returned to the garage. Williams v. H. L. Weil Co. (1924) 1 La. App. 188.

W. S. C.