Classified Parking System v. Kirby, 957

• Citation: 507 S.W.2d 586
• Decision Date: 20 March 1974
• Docket Number: No. 957,957
• Parties: CLASSIFIED PARKING SYSTEM, Appellant, v. Homer T. KIRBY, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 586

507 S.W.2d 586

CLASSIFIED PARKING SYSTEM, Appellant, v. Homer T. KIRBY, Appellee.

No. 957.

Court of Civil Appeals of Texas Houston (14th Dist.).

March 20, 1974.

Rehearing Denied April 10, 1974.

George Red, Red & Kemp, William R. Powell, Houston, for appellant.

Chilton Bryan, Lowell T. Cage, Houston, for appellee.

CURTISS BROWN, Justice.

This is a bailment case.

On October 6, 1970, appellee Homer T. Kirby (Kirby) loaned his 1969 Buick LeSabre to his brother-in-law Harold Simpson (Simpson). Simpson drove the car to downtown Houston and parked it in appellant's parking lot located at the intersection of Capitol and Smith streets, at approximately 1:00 in the afternoon. When he returned for the car at 8:00 that evening, the attendant had left the lot and the car was missing. Both Simpson and Kirby reported to the Houston Police Department that the car had been stolen. It was recovered in January 1971 in a damaged condition. Kirby brought suit to recover the difference in value of the car before and after the theft. Trial was to a jury on special issues, and judgment on the verdict was entered that Kirby recover $2,100 from appellant Classified Parking System (Classified).

Simpson testified by deposition that when he entered the lot that day the attendant was busy, that he paid in advance approximately two dollars in cash, that he was told to leave the keys in the car, and that he received no claim ticket. He further stated that he was not told that the lot would close at 5:30 in the afternoon and that he did not see the sign located on the lot which gave this information. Testimony by representatives of Classified indicated that it is presently their practice to remove the keys from all cars left on the lot after closing time; nevertheless, this was not their practice at the time of the theft of Kirby's car. There is conflicting, confused testimony as to what the attendant did, or might have done, on October 6, 1970. The attendant testified that he did not remember Kirby's car being left in his lot. He also testified, however, that some 140 cars are parked there each day and that he obviously could not remember all of them.

The jury found in response to special issues that the attendant failed to remove the keys from Kirby's car, that that failure was negligence, and that it was the proximate cause of the occurrence. Contrary to appellant's contentions there was ample evidence to support the submission of these issues and the jury's findings.

Appellant's other main complaint on appeal is the manner in which damages were proved. Kirby testified that he purchased the car on February 12, 1969, that at the time of the theft it had been driven approximately 24,000 miles, and that it was in very good condition. He then testified as to its value as follows:

Q Do you have an opinion as to the value of the car on the day it was stolen?

MR. RED: I object to that, your honor.

THE COURT: Overrule the objection.

Q (By Mr. Cage) Do you have an opinion?

A To me the car was worth at least $3500.

Q That is your opinion as to its value?

A Yes, sir.

At the time the car was recovered in January 1971, Kirby sold it to Mr. Paul White (White). White was called by appellee as an expert witness to establish the value of the car when it was recovered. White testified that he had been in the insurance appraisal business for over thirty years and that he had often made appraisals on automobiles. He stated that he was familiar with the prices of new and used cars in and around Houston, Texas, and that he was familiar with them in October of 1970 and in January of 1971. He testified to value as follows:

Q (By Mr. Cage) Let me ask it again: At the time you examined the car for the purposes of making a bid on it did you at that time come to an opinion, based on your training, as to the reasonable market value of the automobile in the condition it was in at that time?

A Yes, sir.

Q And what was the value of it at that time, in your opinion?

A $1400.

Q In your opinion $1400 was a reasonable market value in Harris County?

A Yes, sir.

The jury found the value of the car before the theft to be $3500, and after it was recovered to be $1400, resulting in judgment for Kirby for $2100.

Appellant complains that the testimony of Kirby and White was insufficient to support the submission of issues on the value of the car. As to White it is argued...