Keenan Hotel Co. v. Funk

• Citation: 177 N.E. 364,93 Ind.App. 677
• Decision Date: 12 August 1931
• Docket Number: No. 14220.,14220.
• Parties: KEENAN HOTEL CO. v. FUNK.
• Court: Indiana Appellate Court

93 Ind.App. 677

177 N.E. 364

KEENAN HOTEL CO.

v.FUNK.

No. 14220.

Appellate Court of Indiana, in Banc.

Aug. 12, 1931.

Appeal from Superior Court, Allen County; Geo. H. Leonard, Judge.

Action by Bert Funk against the Keenan Hotel Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Colerick, Jackson & Parrish, of Ft. Wayne, for appellant.

Hartzell & Todd, of Ft. Wayne, for appellee.

WOOD, J.

Appellee filed his complaint in the court below alleging that on or about September 28, 1929, he was the owner of a certain described automobile of the value of $600; that upon said date this automobile was stored in a public lot located in the city of Ft. Wayne, which lot was operated and controlled by appellant, and in which the appellant solicited the general public to park automobiles, charging for the service so rendered the sum of 25 cents per day, which appellee paid; that, as a consideration for said charge, appellant undertook and agreed to safely keep and care for said automobile and return same to appellee upon return of the receipt issued to him by appellant at the time of storing of same; that while in the care and custody of appellant said automobile through appellant's negligence was stolen; that appellee returned his receipt for the automobile to appellant, but it never returned or delivered said automobile to him; that by reason thereof he was damaged in the sum of $600.

To this complaint an answer in general denial was filed. Upon the issue thus tendered, the cause was submitted to the court for trial, without a jury. Judgment was rendered against the appellant. Motion for a new trial was overruled; hence this appeal. The only error assigned by appellant is the overruling of its motion for a new trial. The only reason for a new trial, relied upon by appellant for a reversal of this cause is that the decision of the trial court is not sustained by sufficient evidence.

Counsel for both appellant and appellee agree that the complaint proceeds upon the theory of damages suffered by appellee because of the careless and negligent breach of a contract of bailment by appellant.

[1][2][3][4] This court will not weigh the evidence where it is conflicting. If there is any evidence tending to support every essential fact necessary to sustain the judgment, it is sufficient. It is also the rule, that the court or jury trying the cause may draw any reasonable inference of fact from the evidence. It is not essential that a fact be proven by direct and positive evidence, but, where it may reasonably be inferred from the facts and circumstances which the evidence tends to establish, it will be sufficient on appeal. Federal, etc., Co. v. Sayre (1924) 195 Ind. 7, 142 N. E. 223. It is only when there is no evidence on some essential element to sustain the judgment, or to sustain any reasonable inferences in support thereof that this court would be justified in reversing a cause for want of evidence. Emerson, etc., Co. v. Tooley (1923) 81 Ind. App. 460, 141 N. E. 890.

[5][6] In the trial a copy of the receipt issued by appellant to appellee at the time the automobile was parked was introduced in evidence. It was in words and figures as follows: “Claim Check B 9519, Date - Name - Address - We are not responsible in case of Fire, Theft, or Accident, Clinton-Wayne Parking Co. Wayne at Clinton Street. Fort Wayne, Indiana.” Counsel for appellant insist that an acceptance of the receipt by appellee with the conditions recited thereon made them a part of the contract of bailment, and that appellee is bound thereby. This contention is sustained by the authorities. But such conditions would not relieve appellant from liability if appellee's car was stolen from the parking lot through its negligence. Hotels, etc., Co. v. Safier (1921) 103 Ohio St. 638, 134 N. E. 460, 22 A. L. R. 1190;Parris v. Jaquith (1920) 70 Colo. 63, 197 P. 750;Denver, etc., Co. v. Cullinan (1922) 72 Colo. 248, 210 P. 602, 27 A. L. R. 154; 6 C. J. 1112; Cascade, etc., Co. v. Petter (1923) 72 Colo. 570, 212 P. 823.

From evidence which is...