Bommer v. Stedelin

• Decision Date: 20 February 1951
• Docket Number: No. 28087,28087
• Citation: 237 S.W.2d 225
• Parties: BOMMER v. STEDELIN et al.
• Court: Missouri Court of Appeals

Page 225

237 S.W.2d 225

BOMMER v. STEDELIN et al.

No. 28087.

St. Louis Court of Appeals, Missouri.

Feb. 20, 1951.

Fred B. Whalen, Warren Grauel, St. Louis, for appellant.

Jerome F. Duggan, Dubinsky & Duggan, all of St. Louis, for respondents.

HOUSER, Commissioner.

This is a bailment case involving a claim for damages to an automobile delivered to a public parking lot for storage and parking.

This appeal involves the propriety of the action of the trial court in directing a verdict for defendants at the close of plaintiff's evidence and in refusing plaintiff's request to reopen the case to present additional evidence.

Plaintiff's petition alleged that the defendants operated a parking lot for storing and parking vehicles for a consideration; that plaintiff owned a certain motor vehicle; 'that on or about the 26th day of April, 1947, plaintiff's wife, Mrs. Fred Bommer, delivered and transferred possession of plaintiff's said motor vehicle to an agent, servant, and employee of said defendants for a stated consideration for the purpose of having defendants park and store plaintiff's said motor vehicle at said parking lot known as City Auto Parks, southeast corner of Delmar Boulevard and 8th Street and having an address of 719 Lucas Avenue in the City of St. Louis, State of Missouri. That the possession of plaintiff's said motor vehicle was taken by the agent, servant and employee of said defendants for that purpose; that at the time of delivery and transfer of possession of said motor vehicle to defendants, said motor vehicle was in good condition; that defendants by and through its employees, servant and agent delivered and returned possession of the plaintiff's said motor vehicle in a damaged and wrecked condition by negligently and carelessly driving and operating plaintiff's said motor vehicle so as to collide with parked motor vehicles on said lot'; 'that as a direct and proximate result of the negligence and carelessness of said defendants, its agents, servants and employees in returning possession of plaintiff's said motor vehicle as aforesaid' plaintiff was damaged to the extent of $500.

The testimony showed that plaintiff's wife, intending to shop in downtown St. Louis, took plaintiff's automobile to the parking lot at 8th and Delmar, turned the car over to an attendant, received 'a little stub', paid 'a quarter' and the attendant drove the car 'away'; that the parking lot was 'two or three stories high and it has no sides'. Plaintiff testified that it was 'a three story steel affair'. Upon returning for the car later in the day plaintiff's wife went to the office on the premises, gave the stub 'to the boy, and he went and rang it out on a time card and went and got it for me'; that he went upstairs; that 'he got on some kind of a little elevator and went on some kind of a lift.' She was standing about 30 or 40 feet from the ramp down which the automobile was driven. She heard and saw the car coming down the ramp. She testified 'It sounded like wheels squeaking, and the brakes squeaking and whistling.'

'Q. What happened to your car? A. It come on down and hit into a parked car and part of the building, one of those big girders.

'Q. A steel girder? A. Yes, sir.

'Q. Did it stop against the girder or this other automobile? A. Oh, yes.'

She testified that 'some young fellow' was driving the car down the ramp. She could not say whether or not he was the one to whom she had given the ticket or with whom she had left the car.

The 'whole front end' of the automobile was damaged. It looked like the engine was pushed back under the seat. Plaintiff was called to the scene and when he arrived his car was 'laying against a big, new car and the balance of it was agaisnt the steel girder.'

Plaintiff's wife testified that a gentleman who identified himself as Mr. Stedelin came to the parking lot after the occurrence; that he was 'in charge there'; that after her husband arrived Stedelin said he did not own the parking lot; that it was owned by the Glueck Realty Company. 'Q. Did he indicate to you or to your husband what capacity he held, if any? A. Well, I don't know whether he was in charge or vice-president or president of it.'

Plaintiff testified that he had a conversation with Jerome Stedelin; that plaintiff wanted to know 'who was in charge'; that Stedelin said 'he was the manager of the parking lot under the Glueck Realty Company at 1103 North Third Street, were the owners of the lot'; that Stedelin did not disclose to plaintiff his capacity with the company.

Plaintiff's proof of damages is not challenged.

When defendants' counsel requested a directed verdict at the close of the plaintiff's evidence, the trial judge indicated he would direct a verdict, whereupon plaintiff's counsel requested leave to reopen the case 'in order to bring in additional witnesses to testify with respect to ownership and operation of the parking lot * * * by bringing in the officers of the Glueck Realty Company' stating he could 'within an hour' produce evidence to 'further show to the court the ownership of this parking lot by the defendants.' Leave to reopen was denied.

Although defendants' motion for a directed verdict was based on failure to connect defendants with the ownership and management of the parking lot, on this appeal they as respondents have not briefed this point but rather have sought to sustain the action of the trial court on the failure of plaintiff to prove specific negligence and failure to prove that the driver of the car was the agent of defendants. We will consider these questions before disposing of the claim of abuse of discretion.

In a mutual benefit bailment such as these facts disclose, a submissible case may be made by alleging and proving first, the bailment; second, that the automobile was in the exclusive possession of the defendant; and third, that the automobile was returned in a damaged condition. Such proof raises a presumption, indeed, makes a prima facie case of negligence under the res ipsa loquitur doctrine, shifting to the bailee the burden of going forward with the evidence to rebut the inference of negligence. Oliver Cadillac Co. v. Rosenberg, Mo.App., 179 S.W.2d 476.

Plaintiff not only alleged the constitutive facts of a bailment case but further charged redelivery of the motor vehicle 'in a damaged and wrecked condition by negligently and carelessly driving and operating plaintiff's said motor vehicle so as to collide with parked motor vehicles on said lot.' While conceding that the doctrine of res ipsa loquitur is applicable in the ordinary bailment case, respondents contend that it is inapplicable here; that plaintiff has pleaded specific acts of negligence, and has the burden of proving specific negligence by substantial evidence in order to take his case to the jury.

It is well settled that where specific negligence is alleged in a res ipsa loquitur situation the plaintiff cannot rely upon the doctrine to take his case to the jury, Venditti v. St. Louis Public Service Co., Mo.Sup., 226 S.W.2d 599, but in such case plaintiff will be held to prove the specific negligence pleaded. Benner v. Terminal R. R. Ass'n of St. Louis, 348 Mo. 928, 156 S.W.2d 657.

Previous decisions have declared the following to be general, not specific, allegations of negligence, entitling the pleader to the benefit of the res ipsa loquitur doctrine: that defendants 'negligently allowed the car to become injured by reason of the fact that the elevator fell, throwing the car against the side of the elevator and injuring it', Austin v. Simon, Mo.App., 204 S.W. 193 (a bailment case); that defendant 'negligently caused and permitted said auto to leave said slab then and there free from travel and unobstructed and collide with a bank * * * and to turn over', Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471, 473 (a guest case); that 'defendant's servants in charge of...