Westchester Dev. Corp.. v. Burkett

• Decision Date: 11 August 1944
• Docket Number: No. 203.,203.
• Citation: 38 A.2d 628
• Parties: WESTCHESTER DEVELOPMENT CORPORATION v. BURKETT, to Use of AUTOMOBILE INS. CO. OF HARTFORD, CONN.
• Court: D.C. Court of Appeals

38 A.2d 628

WESTCHESTER DEVELOPMENT CORPORATION

v.BURKETT, to Use of AUTOMOBILE INS. CO. OF HARTFORD, CONN.

No. 203.

Municipal Court of Appeals for the District of Columbia.

Aug. 11, 1944.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by Harry J. Burkett, to the use of the Automobile Insurance Company of Hartford, Conn., against Westchester Development Corporation, to recover the amount paid by the use plaintiffs as damages to plaintiff's automobile when wrongfully taken from a garage on defendant's premises. Judgment for plaintiff, and defendant appeals.

Affirmed.

Paul J. Sedgwick, of Washington, D. C., for appellant.

Thomas B. Heffelfinger, of Washington, D. C. (W. Cameron Burton, of Washington, D. C., on the brief), for appellee.

Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.

HOOD, Associate Judge.

Plaintiff's automobile was wrongfully taken from a garage in the basement of the Westchester Apartments and later recovered in a damaged condition. His insurance company paid him for the damage and this action was brought in his name to the use of the insurance company to recover that sum from the owner of the apartment house. There was a finding and judgment for plaintiff.

The single question argued on appeal was whether the relationship of the parties, with respect to the automobile at the time it was taken, was that of bailor and bailee or landlord and tenant. Defendant concedes that if a bailment existed the judgment is correct.

The undisputed facts are that plaintiff rented an apartment, without written lease, from defendant, and at approximately the same time made arrangements for ‘parking and storage privileges' for his two automobiles in the garage operated by defendant in the basement of the same building solely for its tenants. He paid an agreed sum per month for the storage of the two cars and an additional sum for washing and cleaning them. Two specific spaces in the garage were assigned to him. At times when he drove to the garage he parked the car in its space; at other times he left the car with the garage attendant who parked it. It was necessary that the ignition keys be left in the cars while in the garage in order that the attendant could move them as required. When the cars were washed they were taken to a nearby ‘laundry.'

On the occasion in question-late on a Saturday afternoon-plaintiff drove his car to the garage and parked it in its assigned space. He did not intend to use the car again until Monday. In the early hours of Sunday two boys entered the garage and drove away plaintiff's car and later damaged it.

Defendant insists it was not a bailee but simply rented space to plaintiff for parking and storing his car; that possession of the car remained always in plaintiff except at such times as the attendant removed the car from the garage for washing; and that at the time the car was taken and damaged it was taken from the possession of plaintiff...