Malone v. Johnson

• Decision Date: 07 January 1949
• Citation: 64 A.2d 51,135 Conn. 286
• Court: Connecticut Supreme Court
• Parties: MALONE v. SANTORA. JOHNSON v. SANTORA.

135 Conn. 286

64 A.2d 51

MALONE

v.SANTORA.

JOHNSON

v.SANTORA.

Supreme Court of Errors of Connecticut.

Jan. 7, 1949.

Appeal from Court of Common Pleas of Waterbury; FitzGerald, Judge.

Consolidated actions by Robert Malone and by Ruth S. Johnson against Lawrence Santora, to recover damages to plaintiffs' automobiles stolen from defendant's parking lot. Judgment for plaintiff in each case, and defendant appeals.

No error in either case.

Michael V. Blansfield and Harry M. Albert, both of Waterbury, for appellant.

J. Warren Upson, of Waterbury (Kenyon W. Greene, on the brief), for appellee Johnson.

Martin J. Dunn and T. Gordon Hutchinson, both of Waterbury, for appellee Malone.

Before MALTBIE, C. J., and BROWN, JENNINGS and ELLS, JJ.

BROWN, Judge.

The plaintiff in each of these cases sued the defendant to recover for damage to the plaintiff's automobile consequent upon its being stolen from the defendant's parking lot, where the plaintiff owner had left it and paid the required parking charge. In each case judgment was rendered for the plaintiff and the defendant has appealed.

The essential facts are undisputed and may be thus summarized: The plaintiff Johnson's car was stolen on the evening of November 22, 1946, and that of the plaintiff Malone on the evening of November 29, 1946. Each was subsequently recovered in damaged condition. The defendant's parking lot, with a capacity of 150 cars, has a frontage of 70 feet on the north side of East Main Street in Waterbury and a depth of 270 feet. It is effectively inclosed except for two entrances, one, about 14 feet wide, at a rear corner, and the other, 59 feet wide, on East Main Street. About 8 p. m. on November 22 the plaintiff Johnson drove her car into the lot, paid the defendant or one of his attendants the customary twenty-five-cent charge and left the car with him in response to his statement, ‘Leave your keys, I'll park the car.’ She left her keys in the car and he parked it. For the purpose of identification she was given a ticket, a detached part of which he placed on the car. On it was printed: Liability. Management assumes no responsibility of any kind. Charges are for Rental of space. From 8 A.M. TO 11 P.M. Not responsible for articles left in or on the car. Agree to the within terms.' She read these words and understood their purpose to be that the car owner agreed to the terms stated. There was also a sign on the premises which she did not notice and which read: ‘Charges are for use of Parking space until 11 P.M. Not resonsible for cars left open after 11 P.M. You may lock your car.’ She left and when she returned for her car shortly before 11 p. m. it could not be found. It had been stolen meantime. Upon her return the defendant and two attendants were there on duty. In accepting this car as he did, the defendant acted in the ordinary course of his business as a parking lot operator and in accord with his practice as to the car of the plaintiff and as to those of many others, not only upon that evening but upon other occasions also. It was his policy to insist that no one claiming a car should be allowed to drive it off the lot without first presenting the identifying ticket, unless the claimant was known to the defendant or his employees.

About 7 p. m. on November 29 the plaintiff Malone drove his car onto the parking lot, turned it over to one of the defendant's employees, paid the twenty-five-cent charge and received a ticket from the attendant, who placed the detached part of it on the car. The printing on the ticket was of the same purport as recited above. Malone put the ticket in his pocket without reading it and left. The attendant parked the car, leaving the key in the switch. Shortly before 10 p. m. Malone returned, presented the ticket to the attendant and demanded his car. It could not be found. Meantime a person had entered the lot and stated to one of the attendants that his brother was the owner of the car and that he had requested him to get the car for him. Malone had authorized no one to call for the car and the person making the request was an imposter and a thief. One of the attendants delivered the car to him and he drove it away. On that evening at least three attendants were on duty.

In each case the court concluded: There was a bailor and bailee relationship between the plaintiff and defendant; the wording on ticket and sign did not bar the plaintiff's right of recovery; on the ground of public policy the bailment was not subject to the limitation on liability therein set forth; the defendant was negligent in the discharge of his duty as bailee; the plaintiff is entitled to recover for the damage accruing to his car, that of the plaintiff Johnson being $168 and that of the plaintiff Malone $400. Whether these conclusions are justified is the question determinative of these appeals.

In recent years there have been many decisions concerning the liability of operators of parking lots for cars parked thereon by customers. As has been well observed, cases of this nature may be divided into ‘two types: first, those where the attendant merely collects the fee and designates the area in which to park, the driver himself doing the parking and retaining complete control over the car, locking it or not as he wishes; and second, those lots, usually enclosed, where the attendants take complete charge of the car at the entrance, park it, retain the keys and move the car about as necessary, giving the driver a check or ticket, upon presentation of which they deliver the car to him.’ 27 Geo.L.J. 162, 163. As this article goes on to point out, situations of the second type have usually been held to give rise to liability on the ground that the transaction is a bailment, while liability has been denied in those of the first, the courts holding that the lack of the essential element of possession in the lot operator renders the relationship one of a license or of a privilege to park rather than of bailment. Of the large number of authorities which have recognized this basic distinction and held assumption of control the determinative factor, we cite but a few. Sandler v. Commonwealth Station Co., 307 Mass. 470, 30 N.E.2d 389, 131 A.L.R. 1170; Osborn v. Cline, 263 N.Y. 434, 189 N.E. 483; Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 58 N.E.2d 658; Quinn v. Milner, D.C.Mun.App., 34 A.2d 259, 260; notes, 131 A.L.R. 1175, at 1176, 1184-1202, 175 A.L.R. 123; 24 Am.Jur. 493, § 29.

Whether a car owner merely hires a place to put his car or has turned its possession over to the care and custody of the lot operator depends on the place, the conditions and the nature of the transaction. Osborn v. Cline, supra; Galowitz v. Magner, 208 App.Div. 6, 203 N.Y.S. 421, 423. Among the significant facts in each of the instant cases were these: The lot was inclosed; the defendant's attendants were present to attend to cars brought in to be parked; the plaintiff paid the parking charge to the attendant who gave him his claim ticket; the plaintiff left the switch key in the car at the request of the...