Vollmer v. Stoneleigh-Maple Terrace

• Court: Texas Civil Court of Appeals
• Writing for the Court: YOUNG
• Citation: Vollmer v. Stoneleigh-Maple Terrace, 226 S.W.2d 926 (Tex. Ct. App. 1950)
• Decision Date: 13 January 1950
• Docket Number: STONELEIGH-MAPLE,No. 14146,14146
• Parties: VOLLMER v.TERRACE, Inc.

Page 926

226 S.W.2d 926

VOLLMER v. STONELEIGH-MAPLE TERRACE, Inc.

No. 14146.

Court of Civil Appeals of Texas, Dallas.

Jan 13, 1950.

Rehearing Denied Feb. 10, 1950.

Strasburger, Price Holland, Kelton & Miller and Royal H. Brin, Jr., all of Dallas, for appellant.

Leachman, Mattews & Gardere and Kiel Boone, all of Dallas, for appellee.

YOUNG, Justice.

Appellant sought recovery in damages to his automobile which disappeared from defendant's garage (operated in connection with its apartment hotel), and later found in a wrecked condition. Negligence was alleged on part of defendant and its employees in permitting the car to be thus stolen, with counter charges against plaintiff of contributory negligence. The jury found plaintiff, along with defendant, guilty of negligence in various respects, proximately causing the loss; whereupon the court overruled plaintiff's motion for judgment notwithstanding the jury findings of negligence adverse to him and entered judgment for defendant; appeal being prosecuted from such rendition.

The jury made findings of negligence constituting proximate cause of loss, viz.: (Against defendant): (1) Failure to keep adequate watch over plaintiff's automobile while in garage; (2) failure to keep sufficient attendants at garage to guard parked automobiles; (3) failure to have chain up across door through which plaintiff's car was taken; (4) failure of Colbert Hill, its employee, to have garage doors closed; (5) leaving keys in plaintiff's car on the occasion in question. (Against plaintiff): (1) Acceptance of garage facilities furnished by defendant; (2) failure to keep proper lookout for his own automobile; (3) failure of Vollmer to remove keys from automobile; (4) his failure to see that there was a sufficient number of attendants at garage to guard automobile. Difference in market value (before taking and after recovery in damaged condition) was fixed at $1,400.

Pursuant to Rule 169, Texas Rules of Civil Procedure, the following admissions were made by defendant on plaintiff's request: That on or about April 1, 1947, defendant owned, operated, and maintained a garage in connection with Stoneleigh Hotel for benefit and convenience of guests; that an employee of defendant (Colbert Hill) was the only attendant on duty at such garage on night when plaintiff's car was taken, who was acting in course and scope of employment in parking plaintiff's car on said occasion; and that the chain provided to stretch across garage entrance had not been put in position at time plaintiff's car was stolen.

Defendant's garage (an enclosed structure at rear of hotel proper) was of two levels, with ramps leading to each, and accommodating some thirty-odd cars. Between levels was a small office for use by hotel attendant, equipped with a bell or buzzer. Upon arrival of a patron at hotel entrance, his car, if seen by the attendant, would be taken over and stored; with buzzer used for such purpose to attract attention of the particular employee. This was the ordinary routine.

Appellant had been a resident of the hotel for some eighteen months, paying $190 per month for apartment space and $7.50 per month for car storage in garage, when, on the evening of April 1, 1947, between 8:00 and 10:00 P. M., he drove his '41 Cadillac automobile up to the hotel entrance, turned vehicle over to Colbert Hill, the employee, who immediately parked it in usual upper-level space in garage. Within a short interval and while Hill was parking another car on lower level, he heard noise of a starting motor and ran out in time to see the Vollmer car being...