Suits v. Electric Park Amusement Company

• Court: Kansas Court of Appeals
• Writing for the Court: ARNOLD, J.
• Citation: Suits v. Electric Park Amusement Company, 213 Mo.App. 275, 249 S.W. 656 (Kan. App. 1923)
• Decision Date: 05 March 1923
• Parties: E. S. SUITS, Appellant v. ELECTRIC PARK AMUSEMENT COMPANY, a Corporation, Respondent

249 S.W. 656

213 Mo.App. 275

E. S. SUITS, Appellant v. ELECTRIC PARK AMUSEMENT COMPANY, a Corporation, Respondent

Court of Appeals of Missouri, Kansas City

March 5, 1923

Appeal from the Circuit Court of Jackson County.--Hon. Thos. B Buckner, Judge.

Judgment affirmed.

J. K Cubbison, William G. Holt and Charles A. Blair for appellant.

Hagerman & Jost, Frank Hagerman and Henry L. Jost for respondent.

OPINION

ARNOLD, J.

--This is an action to recover the value of an automobile which plaintiff alleges he delivered to defendant, and which defendant refused to return to him on demand.

Plaintiff was a resident of Brookfield Missouri, and defendant is a corporation operating an amusement park in Kansas City, Missouri. The evidence shows that on, or about, the 11th day of July, 1919, at 9:00 p. m., plaintiff drove his automobile to the park of defendant; that he drove up to the entrance gate on Paseo Parkway and asked the ticket seller for tickets for six passengers and his car; that he paid the usual and customary admission fee for the six persons and was told that his car would be taken care of inside by defendant's agent; plaintiff thereupon drove his car inside the enclosure, where, in addition to the space occupied by the amusement concessions and adjacent thereto, there were some six or eight acres into which patrons arriving in automobiles were permitted to drive and park their cars. On passing through the entrance gate plaintiff was directed by a man in uniform where to park his car. Plaintiff parked his car at the place so designated and, after locking the ignition device and placing the key in his pocket, he proceeded with his companions. After visiting the amusement concessions, plaintiff and his friends returned, about 10:30 p. m., to the place where the car had been left, and found it was gone, whereupon plaintiff concluded that his car had been stolen, and in his testimony, he stated there was no doubt in his mind but that the car had been stolen. Later, he posted with the police department of Kansas City, Mo., a reward of $ 500 for the recovery of the car.

Plaintiff testified that on discovering the loss of his car he "went to the officers to get help," and that at his request the loss was reported to the police department of Kansas City by the officers of defendant. The evidence shows there was no extra charge made by defendant for the parking of cars within the enclosure and that no checks were issued therefor by defendant company; that the gate through which plaintiff entered the park is used exclusively as an entrance; that there is another gate on the north side of the park which is used only as an exit and that a watchman is maintained there solely for the purpose of preventing persons from using said gate other than for a means of exit.

The petition charges the salient facts substantially as above set forth and in addition alleges, "that afterwards said defendant company refused, and ever since has refused and now refuses, to return and deliver said automobile to this plaintiff, although said plaintiff made a demand on the 11th day of July, 1919, on said defendant company for the return and delivery of said automobile; that by reason thereof, this plaintiff has been damaged in the sum of $ 1900, together with interest thereon from the 11th day of July, 1919."

The cause was tried to a jury and at the close of plaintiff's evidence, on the application of defendant, the court sustained a motion for a directed verdict in the nature of a demurrer to the evidence, and entered judgment accordingly. Failing to secure favorable action on a motion for new trial, plaintiff appeals and bases his hope for reversal on the ground that the court erred in directing a verdict for defendant.

In dismissing the demurrer to plaintiff's evidence the principal point to be considered is whether or not the relation of bailor and bailee existed between plaintiff and defendant at the time of the occurrence in question. Bailment is defined as "a delivery of goods in trust, upon a contract, expressed or implied, that the trust shall be executed and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered." [2 Kent's Comm. 559.]

"A bailment may be defined as a delivery of personalty for some particular purpose, or on mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled it shall be redelivered to the person who delivered it, or otherwise dealt with according to his directions, or kept until he reclaims it as the case may be." [5 Cyc. 161, 162.]

In the classification of bailments the only one with which we have to deal in the case at bar is the depositum, which is where the thing bailed is delivered by the bailor to the bailee to keep for the use of the former without any recompense. The rule is elemental that in order to constitute a transaction in bailment, there must be a delivery to the bailee, either actual or constructive. [Sherman v. Commercial Printing Co., 29 Mo.App. 31.] It has been held that such a full delivery of the property must be made to the bailee as will entitle him to exclude for the period of the bailment the possession thereof, even of the owner. [Fletcher v. Ingram, 46 Wis. 191, 50 N.W 424.] It is proper to state that since the duties and responsibilities of a bailee may not be thrust upon him without his consent, acceptance of the property by him is essential, thereby establishing the necessity of a contract. But an oral bailment is as valid as a written one, and is entitled to the same consideration. [McDermott v. Barnum et al., 16 Mo. 114; Blount v. Hamey, 43 Mo.App. 644.] With these principles in mind, it is necessary only to...