Kole-Tober Shoes, Inc. v. Hoery, KOLE-TOBER
| Decision Date | 30 November 1971 |
| Docket Number | No. 70--443,KOLE-TOBER,70--443 |
| Citation | 30 Colo.App. 264,491 P.2d 589 |
| Parties | SHOES, INC., a Colorado corporation, Plaintiff-Appellee, v. Robert HOERY, doing business as United Auto Parks and Raymond Foreman, Defendants-Appellants. . I |
| Court | Colorado Court of Appeals |
Litvak, Litvak, Schwartz & Karsh, P.C., Alan Karsh, Denver, for plaintiff-appellee.
Anthony F. Vollack, Golden, for defendants-appellants.
Kole-Tober Shoes, Inc., was plaintiff below and shall be referred to as plaintiff or by name. Robert Hoery, doing business as United Auto Parks, and Raymond Foreman were defendants at trial and shall be referred to as defendants or by name.
This case concerns the liability of defendants for damages suffered by plaintiff when its station wagon automobile was stolen from the parking lot of United Auto Parks where plaintiff's salesman had parked it. The basic and undisputed facts are that plaintiff's salesman parked plaintiff's station wagon automobile on the parking lot early one morning. When the salesman returned at noon, he discovered the automobile had been stolen. The automobile was later discovered by the police, but missing from it, in addition to the spare wheel and jack, were plaintiff's sample cases and sample shoes contained therein.
Plaintiff filed suit against defendants to recover its claimed damages of $2,500 incurred as result of theft of the automobile and its contents. Trial was to the court, which found that plaintiff had entrusted the automobile to the United Auto Parks' agent, Raymond Foreman, and had requested him to lock the automobile because it contained eleven sample cases; that the sample cases were in the back seat of the station wagon and in full view of Foreman when the station wagon was parked; and that Foreman had agreed to lock the vehicle but had not done so and, in fact, had left the vehicle unlocked with the keys inside on the floorboard. Although defendants dispute the finding that it agreed to keep the vehicle locked, the trial court's finding is binding on appeal since there is sufficient evidence in the record to support this finding. Adler v. Adler, 167 Colo. 145, 445 P.2d 906.
Defendants' first argument is that the trial court erred in finding a bailment was created as to the contents of the vehicle when the vehicle was left on the parking lot. It is argued that the bailment existed only as to the vehicle itself, not the contents.
No Colorado case on the issue of a bailee's liability for the contents of a bailed vehicle has been called to our attention. Generally, however, when other jurisdictions have been faced with this issue, they have held that a bailee is liable for the contents of a vehicle when the bailee had notice or knowledge, either express or implied, that there were articles of value in the vehicle. Giles v. Meyers, 62 Ohio Law Abst. 558, 107 N.E.2d 777; Parkrite Auto Park, Inc. v. Badgett, 242 S.W.2d 630 (Ky.). Notice of the contents of the vehicle may be implied if the contents are in plain view of the parking lot attendant. Palotto v. Hanna Parking Garage Co., 46 Ohio Law Abst. 18, 68 N.E.2d 170. Under such circumstances, the duty of the parking lot operator to use reasonable care in safeguarding the vehicle has been held to include the responsibility to safeguard the contents of the vehicle of which he has knowledge. See Annot., 27 A.L.R.2d 796 for a full discussion of this point.
The defendants further argue that, even if they had knowledge that there were eleven sample cases in the vehicle, they should not be held liable for the contents of the cases because the value of the contents was not made known to them. This argument...
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