Neely v. Tamburello, 2255

• Decision Date: 06 June 1966
• Docket Number: No. 2255,2255
• Citation: 187 So.2d 526
• Parties: Alton A. NEELY v. August A. TAMBURELLO, d/b/a Tamburello's Garage.
• Court: Court of Appeal of Louisiana — District of US

Page 526

187 So.2d 526

Alton A. NEELY v. August A. TAMBURELLO, d/b/a Tamburello's Garage.

No. 2255.

Court of Appeal of Louisiana, Fourth Circuit.

June 6, 1966.

Sessions, Fishman, Rosenson & Snellings, Robert E. Winn, New Orleans, for plaintiff-appellee.

George E. Weigel, New Orleans, for defendant-appellant.

Before SAMUEL, HALL and BARNETTE, JJ.

SAMUEL, Judge.

This suit for damages to plaintiff's automobile was instituted against the operator of a parking lot or garage. Defendant has appealed from a judgment awarding plaintiff the sum of $211.

Only three witnesses testified during the course of the trial (plaintiff, defendant and an expert automobile appraiser called by plaintiff) and the following facts are not in dispute: Defendant was the operator of a parking lot or garage patronized by plaintiff over a period of several years. In the morning of August 28, 1964 plaintiff left his 10 year old Chevrolet in the defendant's place of business for parking and washing. As was his regular practice, he took the car keys with him, leaving the ignition switch open. During that day the car was stolen while it was in defendant's possession. It was recovered approximately 10 days later in a damaged condition.

Plaintiff testified that during the afternoon of August 28 he received a telephone call from the defendant informing him the car had been stolen from the street where it had been parked after being washed. Defendant denied telling this to the plaintiff and also denied the car had been parked on the street. Defendant further testified that on numerous prior occasions he asked plaintiff to leave the car keys with him, pointing out the danger of theft resulting from the open switch, but on every such occasion plaintiff refused to comply with the request and defendant had ceased making it because he knew plaintiff would only refuse again. Defendant admitted he did not make the request on the day of the theft. Plaintiff testified he always took the car keys with him, leaving the switch open, and had never been asked to leave the keys with the defendant.

In this court defendant makes two contentions: (1) plaintiff was guilty of negligence in not leaving the keys with the defendant, thus increasing the possibility of theft, and this negligence bars a recovery; and, alternatively, (2) plaintiff failed to prove his damages with sufficient certainty. We cannot agree with either contention.

The operator of a parking lot or garage is a 'compensated' depositary or, employing the use of common law terminology, a 'compensated bailee', and LSA-C.C. Arts. 2926 et seq. are applicable. LSA-C.C. Art. 2926 places upon the depositary the obligation of preserving and returning the property deposited and LSA-C.C. Art. 2937 binds the depositary to use the same diligence in preserving the deposit as he uses in preserving his own property, the diligence required being the use of ordinary care such as is expected of a prudent man. Plummer v. Motors Insurance Corporation, 233 La. 340, 96 So.2d 605; General Accident Fire & Life Assur. Co. v. J.F.D.L., Inc., La.App., 148 So.2d 857; Fireman's Fund Indemnity Company v. Sigard, La.App., 129 So.2d 258; Standard Motor Car Co. v. State Farm Mut. A. Ins. Co., La.App., 97 So.2d 435.

Our settled jurisprudence is that the establishment by the depositor of the existence of the deposit and damage to...