Nuell v. Forty-North Corp.
| Citation | 358 S.W.2d 70 |
| Decision Date | 12 June 1962 |
| Docket Number | No. 30959,FORTY-NORTH,30959 |
| Parties | H. Donald NUELL, Plaintiff-Appellant, v.CORPORATION, Defendant-Respondent. |
| Court | Court of Appeal of Missouri (US) |
Leritz & Leritz, Joseph L. Leritz, J. D. Leritz, St. Louis, for plaintiff-appellant.
Donald J. Meyer, St. Louis, for defendant-respondent.
DOERNER, Commissioner.
This is an action to recover damages for an alleged breach of a contract of bailment of an automobile. A trial before the court without a jury resulted in a judgment for defendant, from which the plaintiff has appealed.
In his second amended petition, upon which the case was tried, plaintiff alleged that defendant operated a restaurant located on the premises of the Montclair Apartments in St. Louis, open to the general public, and known as the Frontier Room; that defendant also owned and operated a parking lot on the premises of the Montclair Apartments, and that customers and patrons of the Frontier Room restaurant were permitted to park their automobiles on defendant's parking lot without further payment; that on June 7, 1958, plaintiff, intending to patronize defendant's restaurant, delivered his automobile to defendant to be parked and stored on defendant's parking lot; that defendant 'impliedly agreed to park and store said automobile while plaintiff patronized the Frontier Room Restaurant and thereafter to return said automobile to plaintiff'; and that thereafter plaintiff made a demand upon defendant for the return of his automobile 'but that defendants, in breach of their aforesaid agreement, failed and refused and still fail and refuse to return said automobile.' (The plural was used because a co-defendant, subsequently dismissed, was joined.) Plaintiff prayed for damages of $2500 as the value of his car and for his deprivation of its use.
Defendant answered, admitting that it owned and operated the Frontier Room, and the parking lot for the use of its customers and patrons; alleged that 'customers and patrons of The Frontier Room Restaurant were given the right, subject to the restrictions, limitations and conditions published and posted on said lot and printed on tickets given to each customer or patron using the lot, to park their automobiles thereon without payment'; denied that 'plaintiff delivered said automobile to this defendant for a consideration to be parked and stored on said lot'; denied that defendant impliedly or otherwise agreed to park and store said automobile and to return same; denied that defendant failed and refused to return said automobile in breach of any agreement with plaintiff; and denied, generally, that defendant failed and refused to return defendant's automobile, the value thereof, and plaintiff's loss of use. Further answering, defendant alleged that if plaintiff did, in fact, park his automobile on defendant's lot, he did so subject to the restrictions, limitations and conditions published and posted on said lot, and printed on the ticket given to plaintiff 'including the express condition that the operator of said lot assumed no responsibility for loss by theft or otherwise of said automobile'; and that the loss, if any, of said automobile was not occasioned by the breach of any duty owned by the defendant.
The restaurant owned and operated by the defendant was located in the Montclair Apartments, which was situated in the City of St. Louis, on the east side of Kingshighway Boulevard, in the block between Laclede Avenue on the north and Forest Park Boulevard to the south. The parking lot owned and operated by the defendant for the accommodation of its customers and patrons occupied a plot adjacent to and south of the Montclair, on the northeast corner of Kingshighway and Forest Park. Besides the building, to the north, the lot was enclosed by low concrete or brick walls on the remaining three sides. The principal entrance and exit, about 15 to 18 feet wide, was on the west or Kingshighway side. However, the building did not extend eastwardly to the eastern property line, so that from that end of the lot it was possible to drive northwardly, across a paved area in back of the building, and reach an L shaped public alley, one arm of which ran north to Laclede, and the other eastwardly. According to defendant's evidence, the lot was approximately 135 feet from east to west, and about 105 feet from north to south, and was lighted by eight light standards, and by lights over the doorway to the building, located on the south side thereof.
Plaintiff's evidence was that about 7:00 P.M., on June 7, 1958, accompanied by his wife and another couple, he went to the Frontier Room for dinner. He had been to defendant's restaurant and his car had been parked for him on defendant's lot on previous occasions, and defendant was familiar with the fact, admitted by defendant, that patrons were requested to leave the keys in their cars, so that the attendants could not only park them, but in order that the attendants could move them from time to time to permit the ingress or egress of other cars. The ignition switch on plaintiff's car, a 1956 Chevrolet sedan, was so constructed that in one position the motor could be started without the use of a key. As plaintiff drove up and stopped in front of the entrance-way to the Montclair, a parking lot attendant came up to the car. Plaintiff turned the ignition switch to the 'on' position, removed the key, and turned the car over to the attendant. The attendant gave plaintiff a ticket or claim check, got in the car, and drove it away. Plaintiff put the ticket in his pocket without reading it. Having concluded dinner, and having had the ticket stamped in the restaurant, plaintiff and his party proceeded to the parking lot, at what plaintiff said was about 10:00 P.M. Plaintiff gave the ticket to the parking lot attendant, who looked for the car and subsequently informed plaintiff that he was unable to find it. The automobile was never returned to plaintiff, nor had it been located at the time the case was tried. Plaintiff testified that he paid $2150 for the car in December 1955, as a new automobile, and that in his opinion its value at the time of its disappearance was between $1400 and $1500.
Defendant's principal witness was Marion Tillard, who testified that he had been in charge of defendant's parking lot on June 7, 1958, having gone on duty at 5:00 P.M. and having left at 1:30 or 2:00 A.M. of the following morning. Between the hours of 6:00 and 10:00 P.M. he had been assisted by a co-worker, Charles Bowen. Tillard testified that the normal procedure in handling cars was for the attendant to take the automobile from a customer at the entrance-way to the Montclair, give the patron a ticket, and drive the car to a parking place. He stated that customers were requested to leave the keys in their cars, because the automobiles frequently had to be 'jockeyed' around on a busy and crowded night, and that the attendants left the keys in the cars. Some cars were parked in a row near the entrance on Kingshighway and it was possible to drive them right out the exit without moving other cars. No chains or barricades were maintained on the exits while the lot was in operation. On crowded nights, some cars were also parked in the area in back of the building, but in that event the cars were locked and the keys removed. Cars were not delivered to anyone unless he produced a ticket. Tillard identified the ticket introduced by plaintiff as a ticket used by defendant. He could not remember whether he had parked plaintiff's car, but recalled that plaintiff asked for his automobile, and that he had looked and couldn't find it. He fixed the time at 11:30 P.M. Tillard testified that he had seen no one on the lot on the night in question, other than customers and Bowen, that no loitering was permitted, that he or Bowen was present on the lot at all times; and that the 'only occasion we would have to leave the lot is emergencies or sometimes if weather is very inclement to get some hot coffee.'
Printed on the ticket given plaintiff were the words:
%'the montclair/
Parking Lot is for exclusive use of patrons of Frontier Room--11 A.M. to closing.'
And in much smaller print: Tillard also identified certain pictures of the parking lot, and stated that a sign which appeared in some of them was on display on June 7, 1958. In addition to stating that the lot was for the exclusive use of patrons of the Frontier Room, the sign read: Plaintiff testified he could not recall seeing any sign on the parking lot. Defendant did not produce Bowen as a witness, nor give any reason or explanation for its failure to do so.
In his findings of fact and conclusions of law, delivered orally immediately upon the close of the evidence, the trial court found that the plaintiff had delivered his automobile to the defendant, and that the relationship of bailor and bailee had arisen between them; that the defendant had failed to redeliver plaintiff's car to him; that the defendant as bailee was under the duty to use ordinary care, but was not an insurer; that the responsibility ordinarily assumed by a bailee had been restricted by the defendant; that the car was not lost or taken away or in any way destroyed or damaged by an act of defendant as bailee; and that 'There is no showing by the plaintiff that the failure to redeliver was caused through any default, negligence or miscarriage on the part of this bailee, as the defendant.'
Defendant filed no brief in this court, and we are without the benefit of its views regarding plaintiff's contentions on appeal. The first of these is...
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