Lewis v. Ebersole

• Decision Date: 25 March 1943
• Docket Number: 6 Div. 117.
• Citation: 12 So.2d 543,244 Ala. 200
• Parties: LEWIS v. EBERSOLE.
• Court: Alabama Supreme Court

12 So.2d 543

244 Ala. 200

LEWIS v. EBERSOLE.

6 Div. 117.

Supreme Court of Alabama

March 25, 1943

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Count Three is in Code form for conversion.

Count IV avers that on May 17, 1941, plaintiff delivered to defendant for a reward paid to defendant for the benefit of plaintiff, the possession, custody and control of a certain automobile, the property of plaintiff (described in the complaint), and thereupon defendant became bailee of said automobile; that while said automobile was in possession of defendant as plaintiff's bailee, defendant, through its agents, servants or employes, acting within the line and scope of their employment as such, negligently allowed plaintiff's said automobile to be stolen, and as a proximate consequence plaintiff lost said automobile.

Count V avers that, on said date, plaintiff, as bailor, delivered to defendant, as bailee, the possession, custody and control of a certain automobile of the plaintiff (described); that Knight Electric Company paid defendant a reward for benefit of plaintiff, and in consideration thereof, at the time of delivery of said automobile to defendant as aforesaid defendant agreed and promised to use due care to protect and safeguard said automobile of plaintiff while in defendant's possession and to exercise due care in safeguarding said automobile against theft during said possession; that defendant breached said agreement in that while said automobile was in the possession of defendant under said agreement, defendant failed to use due care in safeguarding said automobile against theft and negligently allowed same to be stolen from its possession, and as a proximate result of said breach of said agreement, plaintiff lost said automobile.

Lawrence Dumas, Jr., of Birmingham, for appellant.

McGowen & McGowen, of Birmingham, for appellee.

FOSTER, Justice.

This suit involves the liability of a parking lot proprietor for the theft of a car parked on it. It was a large unenclosed lot close to the business center of Birmingham. The suit was tried by the court without a jury and judgment was rendered for plaintiff for the amount of the undisputed value of the car which was never recovered.

The only counts on which judgment can be rendered for plaintiff on the evidence are counts IV and V. There was no proof of a conversion. Davis v. Hurt, 114 Ala. 146, 21 So. 468. They allege that defendant was a bailee of the car, to whom was delivered the possession, custody and control of it. This must be proven therefore. If the relation of defendant was that of a licensor merely, it would not sustain the claim in either of those counts.

Their conduct and course of dealing may be such that on some occasions when the car was parked, the custody and control was not delivered to defendant, and on others that this in fact occurred.

The evidence in some of its tendencies was conflicting, and was given orally in open court. It will therefore be reviewed as to the findings and inferences drawn from it by the court as though it had been tried by a jury and motion had been made to set aside the verdict as being contrary to the evidence and was overruled. Thornhill v. Gulf Coast Produce Exchange, 219 Ala. 251, 121 So. 912: see, section 260, Title 7, Code of 1940.

The legal principles affecting liability in this sort of case depend upon the relationship between plaintiff and defendant together with any expressed obligations or those properly to be inferred from the circumstances.

The relationship is either that of (1) a bailment, (2) a license or (3) a lease. The duties imposed by law differ somewhat dependent upon the true legal relation. Those duties may be changed by contract.

It is our province therefore first to determine the nature of their relation, and then see if the duties incident to that relation have been altered by contract.

In order to constitute a bailment the bailee must have voluntarily assumed the custody and possession of the property for another. Ridgely Operating Co. v White, 227 Ala. 459, 150 So. 693. If this is not done the relation here material was either that of a license or a lease. If there was only permission given, though for a reward, to park at any convenient place on the lot, without any assumption of dominion over the property or custody of it in any respect, it was a license. If a designated place on the lot was assigned to the car owner for his exclusive use and no other, without any assumption of dominion or custody of the car, the status was that of a lease. Usually the circumstances of each case control in determining what the status is in this respect, rather than an express agreement so designating it. There have been many cases on the subject, and they have been thus classified in 131 A.L.R. 1176 et seq.: (a) "Where attendants collect fees, merely designate place to park, driver retaining control of car, locking it or not as he wishes." (b) "Where attendants collect fees, assume control of cars, sometimes parking them, moving them about where keys are left at request, and tickets are issued as means of identifying cars upon redelivery." (c) Parking lots whose status is controlled by circumstances partly of one sort and partly of another dependent upon the nature of those circumstances.

The status described in (a), supra, has generally been held to create a license (or lease), and that described in (b) has generally been held to create a bailment. There is not much difficulty when the facts are as stated in either (a) or (b), supra. But when not so and there are other circumstances or they differ in some respects from those in (a) or (b), or combine some of each, there is difficulty in making the classification and in fixing the exact nature of the obligation which the lot proprietor owes to the car owner.

This Court has two cases, each of which is clearly within one of those classes. Ex parte Mobile Light & R. Co., 211 Ala. 525, 101 So. 177, 34 A.L.R. 921, relates to a situation clearly in class (a) supra. There were present all its elements which distinguish it from (b). Then we have the case of Kravitz v. Parking Service Co., 29 Ala.App. 523, 199 So. 727, certiorari denied with opinion, 240 Ala. 467, 199 So. 731. The question there, as in the case last noted above, was on the sufficiency of the complaint. In the latter case the complaint alleged that the relation of bailor and bailee existed. In the former the complaint alleged the existence of certain facts which did not show a bailment, but only a license. But as recognized in the Kravitz case, supra, even though there is a bailment there may be by agreement certain limitations of liability which would not otherwise exist. And we may add there may be by agreement limitations which create a bailment when otherwise it would be a license.

We may here mention some of the circumstances materially affecting the question. The fee collected was a monthly rate of $2.50, by an arrangement made by plaintiff's employer for parking the cars of his salesmen, of whom plaintiff was one. The parking lot was unenclosed, and there was an attendant to service it, also managing a filling station on the lot from 8 A. M. to 6 P. M., after which time there was no attendant until the next 8 A. M. The evidence for defendant without conflict was that there were "day to day" parkers to whom tickets were given on parking, and who habitually left their car keys with the attendant. If these cars had not been taken out at 6 P. M., the keys were deposited at an adjoining hotel, not associated with the lot, where they could be taken up on presenting the ticket. Then there were monthly parkers, such as plaintiff. There was another salesman named Teel likewise employed by plaintiff's employer.

"Both Ebersole and Teel testified that they could park on the lot whenever they wanted to and wherever they could find a space and that they were free to get their cars when they wanted to, without let or hindrance and without securing anyone's permission. Nearly always they parked their cars themselves. If there was a space where the car would not have to be moved, they would lock their car and leave it there. If there was no space where the car could stay without having to be moved, they would leave the keys in the car. Whether to leave the keys or not was not discussed with parking lot employees, Ebersole or Teel made their own decision, based on whether or not the car would have to be moved. Both of them said they had been asked to leave the keys on two or three occasions, but neither Teel nor Ebersole had ever turned the keys...