Weinberg v. Wayco Petroleum Co., 32328

• Decision Date: 19 April 1966
• Docket Number: No. 32328,32328
• Citation: 402 S.W.2d 597
• Parties: Warren WEINBERG, Plaintiff-Respondent, v. WAYCO PETROLEUM COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 597

402 S.W.2d 597

Warren WEINBERG, Plaintiff-Respondent, v. WAYCO PETROLEUM COMPANY, Defendant-Appellant.

No. 32328.

St. Louis court of Appeals, Missouri.

April 19, 1966.

Armstrong, Teasdale, Kramer & Vaughan, Edwin S. Baldwin, St. Louis, for defendant-appellant.

James D. Keast, Morris Rosenthall, St. Louis, for plaintiff-respondent.

BRADY, Commissioner.

This action was originally filed in the magistrate court of the City of St. Louis where the plaintiff was awarded judgment. Upon appeal to the circuit court, a jury being waived, the plaintiff again prevailed and was awarded a judgment of $500.00. This appeal follows the trial court's action overruling defendant's timely after-trial motions. We will refer to the respondent by his designation in the trial court and to the defendant-appellant as Wayco.

There is no dispute between the parties as to the facts. Plaintiff was the holder of a 'Parkard' issued by Wayco for which he paid $10.50 per month and which entitled him to park his automobile at Wayco's garage located at Euclid and Audubon in the City of St. Louis. This garage had five stories and entrance was gained by inserting the 'Parkard' into a slot causing the entrance gate to open. This was a so-called 'self-park garage' and there were no attendants on duty at the time plaintiff parked his automobile at about 11:30 p.m. on September 25, 1962. After securing admission to the garage with the Parkard, plaintiff parked his own car, locked it, and took the keys with him. He did not see nor speak to anyone. When he renturned to his automobile in the evening of September 27th, he found it had been broken into and certain personal property stolen from it. The automobile had not been moved.

The 'Parkard' states: 'This card licenses the holder to park one automobile in this area at holder's risk. Lock your car. Licensor hereby declares himself not responsible for fire, theft or damage to or loss of such automobile or any article left therein. Only a license is granted hereby, and no bailment is created.' Plaintiff testified that prior to this occurrence he had read this language on the card and knew what it said.

Before proceeding to decide the essential issue here presented, one other matter should be disposed of. The plaintiff's petition contained the allegation that he suffered '* * * loss and damage all as a direct and proximate result of the negligence of the defendant.' While its position in this regard is not as clearly stated as we would wish, Wayco deals with this allegation as an attempt to state an alternative claim based upon a theory of negligence and has briefed and argued this case as if plaintiff had proceeded upon these alternative theories stating that its burden is to show that plaintiff could not recover under either theory. Wayco misconstrues this allegation of the petition. Plaintiff's only theory of recovery was bailment. The allegation of the petition above referred to was not an attempt to state a separate cause of action based upon negligence but was an effort to allege that Wayco was guilty of negligence in keeping the terms of the bailment which plaintiff alleged existed in this case; i.e., in not preserving the automobile and its contents intact for redelivery to the plaintiff. By alleging this negligence in general terms the plaintiff, upon proof of his loss, raised a presumption of negligence under the res ipsa loquitur doctrine and thus shifted the burden of going forward with the evidence to the alleged bailee, Wayco. Nuell v. Forty-North Corp., Mo.App., 358 S.W.2d 70, l.c. (6, 7), p. 76. That was the purpose and effect of the allegation Wayco misconstrued. There is only one issue presented in this appeal and that is to determine whether the relationship between the parties was, as plaintiff contends, that of bailee and bailor.

With respect to cases involving automobiles and the contends thereof when loss occurs after the automobile is left in a parking lot, the relationship between the parties is usually one of bailment or license, and whether it is one or the other depends upon the circumstances of the particular case and especially upon the manner in which the parking lot in question is being operated and with whom control of the allegedly bailed article or articles is vested. The obligations of the parties flow from the relationship (bailment or license) once it is established. 24 Am.Jur., Garages, Parking Stations, and Liveries, § 29, p. 493, 1965 Supplement, Note 2.

A 'bailment' in it ordinary legal sense imports the delivery of personal property by the bailor to the bailee who keeps the property in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed, and the property returned or duly accounted for when the special purpose is accomplished or that the property shall be kept until the bailor reclaims it. 8 Am.Jur.2d, Bailments, § 2, p. 906. This court has said that '* * * the term 'bailment' * * * signifies a contract resulting from the delivery of goods by bailor to bailee on condition that they be restored to the bailor, according to his directions, so soon as the purposes for which they were bailed are answered.' Nuell v. Forty-North Corp., supra, 358 S.W.2d l.c. 75, citing Samples v. Geary, mo.App., 292 S.W. 1066, l.c. 1067. We need not examine all the elements of bailment to determine whether or not the relationship exists in the instant case. In Sutis v. Electric Park Mausement Co., 213 Mo.App. 275, 249 S.W. 656 at l.c. 657 it was held '* *...