Freeman v. Myers Auto. Service Co.

• Decision Date: 20 November 1946
• Docket Number: 526
• Citation: 40 S.E.2d 365,226 N.C. 736
• Parties: FREEMAN et al. v. MYERS AUTOMOBILE SERVICE CO., Inc.
• Court: North Carolina Supreme Court

40 S.E.2d 365

226 N.C. 736

FREEMAN et al. v. MYERS AUTOMOBILE SERVICE CO., Inc.

No. 526

Supreme Court of North Carolina

November 20, 1946

Cochran McCleneghan & Lassiter, of Charlotte, for appellants.

James B. Craighill, of Rocky Mount, and Tillett & Campbell, of Charlotte, for appellee.

SCHENCK Justice.

The sole question presented on appeal to this Court is: Did the Court below err in allowing motion for judgment as of nonsuit? There is no serious conflict in the evidence. It establishes that there was a contract between the plaintiffs and the defendant; that the defendant operated a parking lot that the defendant had two types of contracts with its regular customers who paid by the month for parking privileges. The type of contract entered into with the plaintiffs contained the following provisions: 'In consideration of the agreements hereinafter set out and the regular monthly parking charge paid by the holder of the other half of this ticker, Myers (defendant) agrees to permit the vehicle tendered by the said holder to occupy space on the Myers lot shown below for not exceeding 30 days from the date hereof. * * * The holder agrees: 1. That Myers shall not be liable under any circumstances for loss or damage to said vehicle or its contents because of fire, theft, collision or anything else whether due to negligence on the part of agents of Myers or not, and whether said vehicle is parked by an agent of Myers or not, unless a special monthly parking charge of $10.00 is paid and a special monthly parking ticket is procured '. The fee paid by the plaintiffs, as was paid by other customers entering into this type of contract, was $4.00 per month, and the monthly fee paid by customers entering into the other type of contract available from the defendant to customers was $10.00 per month.

On 15 September, 1945, the plaintiffs, having entered into the said first described type of contract with the defendant signifying their agreement to its terms by signing a memorandum thereof and receiving a copy thereof on a stub, and renewing it, in accordance with its terms, from month to month, parked the automobile belonging to them on defendant's lot for several months prior to said date. Mrs. Barrett left the said automobile on the said lot and left the keys in said automobile, her custom, however, being to take the keys with her to the office, and when she wanted to take the car out of the lot she went around to look for it herself. On the date aforesaid, 15 September, 1945, Mrs. Barrett drove up to defendant's parking lot at about 3:00 o'clock, P.M., and stopped her automobile in front of the pumps about 10 or 15 feet from the sidewalk on Tryon Street, and got out of the automobile and walked...