Ex parte Mobile Light & R. Co.

• Decision Date: 26 June 1924
• Docket Number: 1 Div. 322.
• Citation: 101 So. 177,211 Ala. 525
• Court: Alabama Supreme Court
• Parties: EX PARTE MOBILE LIGHT & R. CO. v. MOBILE LIGHT & R. CO. THOMPSON

101 So. 177

211 Ala. 525

EX PARTE MOBILE LIGHT & R. CO.

THOMPSON v. MOBILE LIGHT & R. CO.

1 Div. 322.

Supreme Court of Alabama

June 26, 1924

Petition for Certiorari to Court of Appeals.

Petition of the Mobile Light & Railroad Company for certiorari to the Court of Appeals to review and revise the judgment and decision there rendered in the case styled Thompson v Mobile Light & Railroad Co. (Ala. App.) 101 So. 175. Writ granted.

Harry T. Smith & Caffey, of Mobile, for petitioner.

Alex T Howard, of Mobile, opposed.

BOULDIN J.

The complaint is as follows:

"The plaintiff claims of the defendant the sum of four hundred dollars as damages for that on to wit the 15th day of July, 1922, the plaintiff was the owner of a Ford automobile of the value of to wit four hundred dollars and the defendant was the owner of a large park on Mobile Bay, much frequented by the public, in connection with which a baseball association operated a baseball diamond and stand, also much frequented by the public and by people driving automobiles and near which baseball stand defendant had leased a parking place for automobiles, which was also much used by the public so that many automobiles usually parked there whilst the owners thereof were patronizing the said baseball diamond and stand to see the games played there; defendant regularly kept in attendance an employé at said park, whose duty it was to generally watch after said automobiles so parked and said attendant was regularly seen by the public in and about said automobiles and about said parking place keeping a general lookout for the same; and there was also stationed at the entrance to said place another employé of the defendant who collected fifteen cents for each automobile so parked at said place and this gatekeeper remained on duty a portion of the time whilst said ball games were being played, and one or the other of said employés was on duty regularly throughout the period whilst said ball games were being played and the plaintiff as well as the public in general were induced to believe and from the facts hereinabove set forth had a reasonable right so to believe that the keeping on duty of aforesaid employés or one of them was a part and parcel of the service rendered by defendant in connection with said parking space and the plaintiff alleges that the defendant thereby impliedly agreed with those so using said space that for the consideration of fifteen cents said automobiles would be to that extent protected by the keeping on hand of either or both of said attendants and that their presence there would be a part and parcel of the service rendered by defendant in return for said charge; that on said day the plaintiff's son Paul E. Thompson, Jr., who was then and there using said car with his father's permission paid the sum of fifteen cents and parked his said car in said space and the defendant's gate-keeper handed to plaintiff's said son a check which read as follows 'No. 16767. A charge of fifteen cents is made for the privilege of parking one automobile in the Monroe Park parking space. The company assumes no responsibility for lost or stolen property or damage to property while parking in said parking space. Mobile Light & Railroad Co.' Plaintiff further alleges that whilst his said son was watching the baseball game then being played at said park a thief came to said park and stole his said car and the loss to plaintiff of said automobile was proximately caused by and through the negligence of the defendant in this that it negligently failed to guard or protect plaintiff's said automobile and he shows that whilst his said son was so watching said game neither of said attendants was present at said place or near the

same and as a result thereof said cars had no protection whatsoever from theft and that because of the absence of said attendants and the fact that said defendant had no one at all present at said parking place plaintiff was so caused to suffer said loss of his car, to his damage as aforesaid; wherefore he sues."

The question presented is whether this complaint states a good cause of action as against apt demurrer.

The complaint states clearly the facts upon which liability is claimed. The test is: Would these facts, if proven, support a finding that defendant owed a duty to plaintiff to keep a general watch over the parked cars to prevent theft? Admittedly, if there was no duty in that regard, there was no negligence by nonperformance. No question arises as to legal duty growing out of a public service, such as public warehousemen and the like. The liability must rest either...