City of Meridian v. Webb

387 So. 2d 85, 1980 Miss. LEXIS 2038
CourtMississippi Supreme Court
DecidedJuly 30, 1980
DocketNo. 52017
StatusPublished

This text of 387 So. 2d 85 (City of Meridian v. Webb) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Meridian v. Webb, 387 So. 2d 85, 1980 Miss. LEXIS 2038 (Mich. 1980).

Opinion

ROBERTSON, Presiding Justice,

for the Court:

Appellee, Charles W. Webb, brought suit in the County Court of Lauderdale County [86]*86against the City of Meridian, Mississippi, for damages suffered by him when his automobile was stolen while entrusted to the City of Meridian municipal parking garage. The jury returned a verdict for $2600 in Webb’s favor. The City of Meridian appealed to the Circuit Court, which court affirmed on condition of a $400 remittitur. The City of Meridian has appealed to this Court from the Circuit Court’s affirmance of a $2200 judgment against it.

Appellant assigns as error:

I.The Trial Court erred by overruling motion for directed verdict and refusing to grant requested peremptory instruction and overruling motion for judgment notwithstanding the verdict. The Circuit Court erred in not reversing the case for these same reasons.
II.The Trial Court erred in granting plaintiff’s instructions P-5, P-7, and P-8. The Circuit Court erred in not reversing the case for the same reasons.
III.The verdict is excessive and against the weight of the evidence, even with reduction by $400 by remitti-tur in Circuit Court, and the Circuit Court erred in not reversing the case for the same reasons.

Webb has cross-appealed, assigning as error the granting of a $400 remittitur by the circuit court.

On April 15, 1974, Clara Webb, appellee’s wife, entered into a parking space contract with the City of Meridian whereby, for a monthly fee, she could park her car in municipal parking garage No. 2. A separate “Agreement and Release” signed only by Mrs. Webb, provided:

“It is hereby understood and agreed that the employees of the Municipal Parking Garages of the City of Meridian have my permission to park my automobile, which I have parked in said garages or caused to be parked in said garages, on the street or driveway or streets adjacent to the parking garages, and that said employees have my further permission to place the key in a place to be designated by me in said automobile.
“It is understood and agreed that this will apply only after regular closing hours of said garage, and it is further understood and agreed that in consideration of any of the above services, I will not hold the City of Meridian, or any of its employees, liable for any loss, damages or other claims relevant to the parking of the said automobile on said street.” (Emphasis added).

Mrs. Webb usually worked until 5:30 p. m. at Marks-Rothenberg department store, a very short distance from the parking garage. The testimony was that the parking garage was closed each day about 5:20 p. m., and it took about a minute and a half to remove a car from the garage and park it on an adjacent city street. It was the customary practice for the garage employees to begin moving the cars to vacant parking spaces on surrounding streets about 3:30 p. m. each afternoon.

On June 1, 1978, Mrs. Webb’s 1974 Thunderbird was removed from the garage about 4:15 p. m., and parked on a nearby city street. The keys were placed over the sun visor, as usual, and the car was left unlocked. On this particular day when Mrs. Webb got off work at 5:30 p. m. she was unable to locate her car and subsequently discovered that the car had been stolen. The car was recovered about five and a half months later in Columbus, Ohio, where it had been abandoned on a public street. Ap-pellee testified that he incurred $474.82 in travel expenses, necessary repairs and lost wages in going to Columbus, Ohio, and driving his car back to Meridian, Mississippi.

Webb testified that his 1974 Thunderbird was worth $4400 at the time it was stolen, and that after shopping around among automobile dealers he sold it to an automobile dealer for $2100 two days after he had driven it back to Meridian.

Jerry Cumberland, a used car dealer, testified that the retail value of the car in June of 1978 was between $4200 and $4300, and that the car had a retail value of about $2200 to $2300 when it was recovered and returned to Meridian. '

[87]*87I.

There is no merit in the first assignment of error, that the trial court erred in not granting a directed verdict, peremptory instruction or judgment n. o. v.

In Pope v. Andrews, 361 So.2d 71 (Miss.1978), we restated and reaffirmed the duty and responsibility of a bailee for hire in this way:

Undoubtedly, there existed a bailment for the benefit of the bailor-appellant and the bailee-appellee because the bailment was one of hire. It also is well settled that an ordinary bailee is not an insurer of the goods or chattels delivered into his keeping [Milner Enterprises, Inc. v. Jacobs, 207 So.2d 84 (Miss.1968)], but rather is burdened with due care, that is, reasonable care commensurate with his responsibility. Batesville Gin Co. v. Whitten, 96 Miss. 210, 50 So. 695 (1909); Yazoo & M.V.R. Co. v. Hughes, 94 Miss. 242, 47 So. 662 (1908). And see A. Dobie, Handbook on the Law of Bailments and Carriers, section 16, page 32, and section 17, page 36 (1914). 361 So.2d at 72. (Emphasis added).

The plaintiff’s burden where his car was stolen was stated in the rather old case of Edwards Hotel Co. v. Terry, 185 Miss. 824, 187 So. 518 (1939):

The evidence offered by appellee himself disclosed that the failure to return the car to him was due alone to the fact that it was stolen. The rule is that when this fact is disclosed either by the evidence of the bailor or by that offered on behalf of the bailee the burden is then upon the bailor to show that the theft was occasioned by the negligence of the bailee defendant. The prima facie case made by proof of delivery and failure to return the bailed property disappears upon proof of loss by fire or theft. Yazoo & M.V.R. Company v. Hughes, 94 Miss. 242, 47 So. 662, 22 L.R.A. (N.S.), 975, and the other authorities therein reviewed. Also 8 C.J.S. Bailments § 50, pages 342-346, inclusive. And the defendant is entitled to the verdict unless the plaintiff goes forward and proves that the theft was due to defendant’s negligence. 185 Miss, at 835, 187 So. at 521. (Emphasis added).

The Agreement and Release signed by Mrs. Webb contained this specific limitation: “It is understood and agreed that this will apply only after regular closing hours of said garage, . . . ”

Mrs. Webb testified:

“A I did not think that my car was being brought down on the street until about 5:00 o’clock, which would have not been more than ten to fifteen minutes before I got off work.
Q Now, what made you think it was being brought down at 5:00 o’clock? Did you ever see it brought down at that time?
A No, but, I assumed that if they didn’t close until 5:20 — and I knew they didn’t close until 5:20 — that there would be no need in bringing it down before then.”

The evidence was undisputed that Mrs. Webb’s unlocked car was parked on a public street and the keys placed above the sun visor about 4:15 p. m. on June 1, 1978. It was thus exposed to possible theft for one hour and five minutes before the parking garage closed.

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Related

Pope v. Andrews
361 So. 2d 71 (Mississippi Supreme Court, 1978)
Beetson v. Hollywood Athletic Club
293 P. 821 (California Court of Appeal, 1930)
Edwards Hotel Co. v. Terry
187 So. 518 (Mississippi Supreme Court, 1939)
Campbell v. Portsmouth Hotel Co.
20 A.2d 644 (Supreme Court of New Hampshire, 1941)
Rhodes v. Turner
171 S.W.2d 208 (Court of Appeals of Texas, 1943)
Con-Plex, Inc. v. Clack
207 So. 2d 83 (Mississippi Supreme Court, 1968)
Yazoo & Mississippi Valley Railroad v. Hughes
47 So. 662 (Mississippi Supreme Court, 1908)
Batesville Gin Co. v. Whitten
50 So. 695 (Mississippi Supreme Court, 1909)

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Bluebook (online)
387 So. 2d 85, 1980 Miss. LEXIS 2038, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-meridian-v-webb-miss-1980.