McAshan v. Cavitt

• Decision Date: 17 May 1950
• Docket Number: No. A-2552,A-2552
• Citation: 229 S.W.2d 1016,149 Tex. 147
• Parties: McASHAN et al. v. CAVITT et al.
• Court: Texas Supreme Court

Page 1016

229 S.W.2d 1016

149 Tex. 147

McASHAN et al. v. CAVITT et al.

No. A-2552.

Supreme Court of Texas.

May 17, 1950.

Randle Taylor, San Antonio, Warren & Groce (Walter Groce), Corpus Christi, for petitioners.

William E. Remy, San Antonio, for respondents.

SMEDLEY, Justice.

Following trial without a jury, judgment was rendered by the district court in favor of respondents S. E. Cavitt and wife and their insurer against petitioners for $1750.00, being the value of an automobile belonging to Mr. and Mrs. Cavitt, which was delivered by Mrs. Cavitt to respondents for parking in a parking lot operated by them in the City of San Antonio and was stolen from the lot after 6 o'clock P.M. The Court of Civil Appeals affirmed the trial court's judgment. 227 S.W.2d 340.

These are the facts found by the trial court and shown by undisputed testimony: The parking lot is in the business district of the City of San Antonio. In part it is a small unfenced area abutting two streets. A small office is situated in that area. Patrons drive their automobiles into the area and receive claim checks for them. The automobiles are then driven by an employee of petitioners out of the small area and into a larger adjoining fenced lot. Mrs. Cavitt, who lived in another town, drove her automobile into the small area at about 10:30 o'clock A.M. and delivered it to those in charge of the parking lot for parking and safekeeping, leaving the ignition key in the automobile and either paying at that time the parking fee of twenty-five cents or agreeing to pay it on delivery of the car to her. When she left the car she was given a claim check on which was printed: 'We close at 6 P.M. Cars left later at owner's risk.' She put the check into her purse without reading it. The trial court found that her failure to read the check was a failure to exercise ordinary care. On the office of the parking lot is a sign which Mrs. Cavitt saw: 'Not responsible for merchandise left over 48 hours', and another sign which she did not see: 'A service charge of 50cents will be collected from all persons locking their ignition or taking their keys with them.' Across the entrance to the small area and about fifteen feet above the ground is a sign in letters approximately ten inches high: 'Open at 8 A.M. Close at 6 P.M.' Mrs. Cavitt did not see that sign and it was not called to her attention. She did not know that the parking lot closed at 6 P.M. and no one told her that it did and she was not told that for an additional charge she could take the keys of her automobile with her. When she returned to the parking lot at 7 o'clock P.M. her automobile was not there and no watchman or other employee of petitioners was present. A witness who was in charge of the lot for petitioners testified that respondents' car was moved at 6 P.M. by one of petitioners' employees from the large enclosed lot to the small unfenced area or front lot, and was left near the office, in which there was a light, and near the sidewalk. The keys were left in the automobile. All of petitioners' employees left the parking lot at 6:30 P.M. Petitioners had no provision, rules or regulations for locking or otherwise protecting automobiles that might be left on the parking lot after 6 o'clock P.M., and no system whereby the keys of cars so left were taken to a central location so that owners of cars could call for them.

The trial court found that petitioners failed to exercise reasonable and ordinary care, or any degree of care, for the protection of respondents' car after 6:30 P.M., and that the car was stolen or taken from the parking lot by someone other than the petitioners or the respondents, and that 'such theft was the result of negligence on the part of petitioners in not adequately protecting the same from theft.'

Petitioners' principal defense to the suit as presented by their application for writ of error is that they offered parking service to the public from 8 o'clock A.M. to 6 o'clock P.M. and not after 6 o'clock P.M., and that having thus limited their offer they are not liable for the loss of the automobile. The limitations of their offer upon which they rely are evidenced by the sign over the entrance to the parking lot stating that the lot closed at 6 P.M. and by the printed statement on the claim check which has been quoted above.

When Mrs. Cavitt left the automobile in petitioners' parking lot for parking and safekeeping and paid or agreed to pay to petitioners the parking fee of twenty-five cents and petitioners took possession of the automobile and gave Mrs. Cavitt a claim check, the relation of bailor and bailee for hire was created, and the obligation was imposed upon the bailee to exercise ordinary care to protect the automobile from theft. Exporters' & Traders' Compress & Warehouse Co. v. Schulze, Tex.Com.App., 265 S.W. 133; Rhodes v. Turner, Tex.Civ.App., 171 S.W.2d 208; Rhodes v. McDonald, 141 Tex. 478, 172 S.W.2d 972; Ablon v. Hawker, Tex.Civ.App., 200 S.W.2d 265; Direct Navigation Co. v. Davidson, 32 Tex.Civ.App. 492, 74 S.W. 790; Sandler v. Commonwealth Station Co., 307 Mass. 470, 30 N.E.2d 389, 131 A.L.R. 1170; Vol. 7, Blashfield's Cyclopedia of Automobile Law and Practice, Perm.Ed., § 5022, pages 534-535; Williston on Contracts, (Rev.Ed.) Vol. 4, pp. 2921-2922, Sec. 1045, pp. 2960-2962, Sec. 1065a.

The case before us comes to this: Did the obligation of petitioners to exercise ordinary care for the protection of Mrs. Cavitt's automobile terminate at 6 o'clock P.M. of the day on which the automobile was delivered to them? The position taken by petitioners is that the foundation of bailment lies in contract, that the parties may substitute a special contract for one implied in law, and that in this case a special contract was made by petitioners' offer of parking service to the public from 8 o'clock A.M. to 6 o'clock P.M. and not after 6 o'clock P.M., and by Mrs. Cavitt's acceptance of their offer when she left her automobile with them. To sustain this position petitioners depend upon the sign showing the closing hour and the statement printed on the claim check as being a part or parts of the contract between them and Mrs. Cavitt.

It may well be doubted that the sign of itself, even if it had been seen by Mrs. Cavitt, would have relieved petitioners of the obligation to exercise ordinary care for the protection of Mrs. Cavitt's automobile after 6 o'clock P.M. It gave notice merely that we 'Close at 6 P.M.' It did not clearly give notice that the automobile if left later would be at the owner's risk. It might be construed to mean that no automobiles would be accepted after 6 o'clock P.M. Such a sign will be strictly construed, and will not be interpreted as effecting an exemption from the exercise of ordinary care with respect to the safety of the property if any other meaning may reasonably be ascribed to the language employed. Langford v. Nevin, 117 Tex. 130, 133, 298 S.W. 536.

But the sign was not seen by Mrs. Cavitt and it was not called to her attention. She did not read the identification check, and her attention was not directed to what was printed on it. The general rule, and especially that of the more recent decisions, is that limitations of the bailee's responsibility expressed on signs or printed on claim checks do not become parts of the contracts of bailment and do not bind the bailor unless they are called to his attention. Ablon v. Hawker, Tex.Civ.App., 200 S.W.2d 265; Union News Company v. Vinson, Tex.Civ.App., 227 S.W. 236; Sandler v. Commonwealth Station Co., 307 Mass. 470, 30 N.E.2d 389, 131 A.L.R. 1170 and Note pp. 1175, 1184-1202, 1205; Kravitz v. Parking Service Co., 240 Ala. 467, 199 So. 731; Agricultural Insurance Co. v. Constantine, 144 Ohio St. 275, 58 N.E.2d 658; Malone v. Santora, 135 Conn. 286, 64 A.2d 51; 8 C.J.S., Bailments, § 26, page 266; 6 Am.Jur. pp. 275-276, Sec. 179; Note 175 A.L.R. pp. 8, 123-128; 7 Blashfield's Cyclopedia of Automobile Law and Practice, Perm.Ed., § 5040, pages 560-562; 27 Georgetown Law Journal, pp. 162, 179.

Probably most of the decisions which apply the foregoing rule are in cases where attempt is made to avoid or limit...