Ampco Auto Parks, Inc. v. Williams
| Decision Date | 31 October 1974 |
| Docket Number | No. 18392,18392 |
| Citation | 517 S.W.2d 401 |
| Court | Texas Court of Appeals |
| Parties | AMPCO AUTO PARKS, INC., Appellant, v. R. W. WILLIAMS et ux., Appellees. |
H. Dee Johnson, Jr., Johnson & Cravens, Dallas, for appellant.
B. Reagan McLemore, Price, Fisher, Hill, Patton & McLemore, Longview, for appellee.
The problem presented by this appeal is that of divisible bailment . Specifically, the question is whether an automobile parking station, as bailee, is legally liable to the owner of undisclosed personal property contained in the trunk of an automobile left at the station to be parked and which was thereafter negligently lost.
Ampco Auto Parks, Inc. (AMPCO) operated a commercial parking station in Dallas, Texas. On July 22, 1972 R. W. Williams was visiting in Dallas and driving a rented automobile. The trunk of the automobile contained clothing and other personal belongings owned by Mr. and Mrs. Williams. In addition to ordinary clothing the list of personal property included such items as silver dollars, silver quarters, pictures, antique family heirlooms, jewelry, and a pre-Columbian bell (1000 B.C.). These items had a value of $4,086.10. On the day in question Williams parked the rented automobile at AMPCO's parking lot and received a 'stub' from an employee. At that time none of the items of personal property were visible to anyone outside the car and Williams did not inform AMPCO's employee concerning the contents of the trunk of the automobile. In fact he deliberately did not tell the AMPCO employees of the valuables contained in the trunk. A short time later the automobile, and its contents, was stolen from the parking station. Mr. Williams and his wife brought this action against AMPCO seeking to recover the value of the personal property contained in the trunk of the automobile. It was alleged that AMPCO was a bailee of the contents of the vehicle as well as the vehicle itself, and was negligent in allowing same to be stolen. The owner of the automobile was not a party to the suit. AMPCO responded with a general denial.
Trial was had before the court and a jury. In response to special issues submitted the jury found that AMPCO was negligent in failing to protect from theft the vehicle and its contents and that such negligence was a proximate cause of the loss. The court submitted to the jury special issue number five, together with its instruction, as follows:
Do you find from a preponderance of the evidence that at the time and on the occasion in question the defendant acting as a reasonable and prudent person should have foreseen that the plaintiffs' automobile contained valuable articles of clothing therein?
You are instructed that the defendant is charged with notice of not only the property of which he has actual knowledge, but also the property he could reasonably expect to find contained within the plaintiff's automobile.
In response to this question the jury answered 'We do not.'
AMPCO moved for judgment upon the verdict. Williams also moved for judgment and requested the court to set aside and disregard the jury's answer to special issue number five. The sole ground for this motion was that 'it was a special defensive issue not supported by the pleadings.' The trial court, in its judgment, recited that: 'The court finding that Special Issue No. 5 was a special defensive matter which was not raised by the pleadings, the same is hereby disregarded.' The court then rendered judgment in favor of Williams for the sum of $4,086.10. We are of the opinion and so hold that the trial court erred in rendering such judgment and we therefore reverse and render.
It is settled law in this state that in a bailment for the mutual benefit of the bailor and bailee, the bailee owes the bailor a duty of ordinary care and safekeeping the subject matter of the bailment. It is equally well settled that the duty of ordinary care arises out of the relationship of bailor and bailee, which must of course be created by contract. In this case appellant AMPCO admits that it accepted bailment of the automobile but contends there was never any contract or agreement between it and Williams that AMPCO would accept bailment of the undisclosed valuable personal property contained in the trunk of the automobile. This brings into consideration the concept of a split or divisible bailment.
The law recognizes the well-settled distinctions between the liability of a bailee of a bailed vehicle, and its liability for contents of the vehicle. In most cases the liability of a bailee for hire of an automobile, such as a parking station proprietor, or a garage keeper, the loss of, or damage to, the contents of the automobile, is made to depend on the absence or presence of notice or knowledge of the contents. 8 Am. Jur.2d, Bailments § 64, at 969--970 (1963) and cases therein cited.
In 14 Blashfield, Automobile Law and Practice § 476.4, at 416 (1969) the rule is thus stated: 'In the absence of notice or a special agreement, it has been held that a parking lot proprietor cannot be held liable for the loss of articles left in a parked automobile other than the usual ordinary equipment of the automobile, but, with regard to property in plain view, or of which he has notice, he has the obligation to exercise reasonable care for its safekeeping.'
To the same effect see 27 A.L.R.2d 796 § 2; 8 C.J.S. Bailments § 15b (1962); and Feather, Bailment-Articles Left in Automobiles, 10 Baylor L.Rev. 216 (1958), in which a large number of cases from states throughout the United States are cited in support of this rule of divisible bailment. 1
In Texas there has apparently been very little litigation concerning the exact problem facing us in this case. In Shamrock Hilton Hotel v. Caranas, 488 S.W.2d 151 (Tex.Civ.App.--Houston (14th Dist.) 1972, writ ref'd n.r.e.), plaintiff's wife, after completing a meal in the Shamrock Hilton Hotel Restaurant, departed the dining area leaving her purse behind. The purse was found by the hotel busboy who, pursuant to instructions of the hotel, dutifully delivered the purse to the restaurant cashier. A short time thereafter the cashier gave the purse to a man other than the husband of the lady who lost the purse . The purse allegedly contained $5.00 in cash, some credit cards, and ten pieces of jewelry said to be worth $13,062.00. Plaintiff sued the hotel for the value of the contents of the purse and recovered judgment. In affirming the trial court's judgment the court of civil appeals recognized the general rule in other jurisdictions that a bailee is liable not only for lost property of which he has actual knowledge but also the property he could reasonably expect to find contained within the bailed property. The court concluded that the burden rested upon the plaintiffs to prove the jewelry was a part of the total bailment and the issue of whether it was reasonably foreseeable that such jewelry might be contained within the lost purse ordinarily should have been submitted by plaintiffs. Since it was not submitted, and no objection was made to the omission of such issue, the court held that the issue was tried by consent and found in favor of plaintiffs . The court concluded, that as a matter of law, it could not say that there was no evidence upon which a jury could reasonably find that it was foreseeable that such jewelry might be found in a purse under such circumstances as presented. The court pointed out that people who are guests in hotels such as the Shamrock Hilton, a well-known Houston hotel, frequently brought expensive jewelry with them. Thus, in affirming the trial court's judgment in favor of plaintiffs, the appellate court held the hotel liable for constructive knowledge of the contents of the purse under the peculiar circumstances presented. 2
In a recent case, Allright, Inc. v. Elledge, 515 S.W.2d 266 (1974), ...
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