Kravitz v. Parking Service Co.

199 So. 727, 29 Ala. App. 523, 1940 Ala. App. LEXIS 74

• Court: Alabama Court of Appeals
• Decided: August 6, 1940
• Docket: 6 Div. 487.
• Status: Published

Opinions

SIMPSON, Judge.

This is an action by appellant, as bailor, against appellee, as bailee for hire, for the negligent loss by theft of appellant’s automobile. The complaint is in two counts, the first in case charging negligence in allowing the automobile to be stolen and the second in assumpsit for breach of appellee’s contract as such bailee to exercise due care in safeguarding the bailed property.

The appellee, as a defense to the suit presented the following plea:

“Defendant avers that at the time of the delivery of the automobile by plaintiff to the defendant, and contemporaneous therewith, defendant handed to the plaintiff a writing on a heavy paper card which kind of document is commonly called a ticket, on one side of which appeared the following printed matter:

“ ‘No. 1000

“ ‘Parking Service Co. Inc.

“ ‘2nd Ave., at 18th St.,

“ ‘21st St., at 4th Ave.,

“ ‘(See Reverse Side)’

“On the other side of said ticket there appeared the following printed matter:

“ ‘Notice — The Parking Service Co., Inc., assumes no duty to the holder hereof or to any other person other than to furnish space on the parking lot for the accomodation of the vehicle parked. No responsibility is assumed to watch out for or guard against loss or damage to the vehicle or the contends thereof or the accessories thereon, through fire or theft.

“ ‘Parking Service Co. Inc.,’

“The plaintiff received from the defendant the said writing and retained it until after the time his automobile was stolen, and at no time prior to the theft of his automobile questioned said writing as constituting the terms of the contract between plaintiff and defendant relating to the said automobile, and defendant further avers that plaintiff agreed to pay 25 ‡ for the privilege of parking said automobile on the said parking lot.

“Wherefore, defendant says that it is not liable.”

Appropriate demurrers to this plea were interposed by appellant, and as a result of the adverse ruling thereon by the trial court appellant suffered an involuntary non-suit and accordingly brings this, appeal.

The controlling question presented is whether said plea constitutes a good defense to the action as against the appellant’s demurrers.

The general rule is that a bailee for hire, in the absence of special contract, is held to the exercise of ordinary care and is liable for ordinary negligence. 8 C.J.S., Bailments, p. 269, § 27 a. and note 59.

The parties to a bailment,' however, may limit liability by special contract provided such diminishment of liability is not violative of law or public policy. 8 C. J.S., Bailments, pp. 264, 265, § 26c.

Such special provision in a contract of bailment limiting bailee’s liability, to be effective, must be known to, or brought to the notice of, the bailor, and be assented to by him. 8 C.J.S., Bailments, p. 264, § 26c; 6 Am.Jur. pp. 271, 272, Sec. 177. It is axiomatic that in bailments, as in other contracts, there must be a meeting of minds thereon and assent of both parties thereto; and a disclaimer of liability can only become effective if brought to the bailor’s knowledge. 8 C.J.S. and 6 Am.Jur., supra; Beetson v. Hollywood Ath. Club, 109 Cal.App. 715, 293 P. 821; Galowitz v. Magner, 208 App.Div. 6, 203 N.Y.S. 421, 422.

More specifically, to the case at bar, the rule of modern authorities is that the bailor is not chargeable w'ith notice of special provisions diminishing liability of , the bailee which appear upon something not apparently related to the bailment contract itself or given to the bailor ostensibly as a ticket of identification of the bailed property, unless called to his attention or known to him. 6 Am.Jur. p. 274-5, Sections 178, 179. Accordingly when appellant-bailor delivered “possession, custody and control” of his automobile to appelleebailee “for a reward”' — -i.e. compensation for its safe-keeping — there was imposed on appellee the duty to exercise reasonable care to protect the property and upon request, within the terms of the contract when the condition of the bailment shall have been terminated, to redeliver it to the appellant. For negligent breach of this duty there was consequent liability.

The receipt by appellant of the “ticket” did not bind him to the recitals of the disclaimer of liability on its reverse side unless known to him or brought to his notice or -attention; thereby bringing such provision within and making it part of the terms of the bailment. Goldstein v. Harris, 24 Ala.App. 3, 130 So. 313, certiorari denied 221 Ala. 612, 130 So. 315; Marine Ins. Co., etc. v. Rehm, La.App., 177 So. 79; Beetson v. Hollywood Ath. Club, supra; Galowitz v. Magner, supra; 8 C.J.S. and 6 Am.Jur., supra.

Testing appellee’s plea by the . principles above, it is manifestly lacking in sufficient allegations to constitute a defense to the action. The plea fails to aver that the limiting provision on the reverse side of the ticket was or ever became a part of the contract of, bailment or that it was accepted by appellant as such; or that he had knowledge of or was given notice of such provision.

Construing the plea, as is the rule, most strongly against the pleader (appellee), this court holds to the view that the learned trial court was in error in overruling appellant’s demurrers to the plea, which demurrers aptly pointed out the defects noted hereinabove.

The case of Ex parte Mobile Light & R. Co., 211 Ala. 525, 101 So. 177, 178, 34 A.L.R. 921, relied upon by appellee as supporting the action of the trial court, seems to be harmonious to our conclusions here. The two cases are readily distinguishable. Unlike the case at bar, in which the fact of bailment is specifically alleged, the opinion in that case (Ex parte Mobile, etc.) construed the transaction there to be one of lessor and lessee, where the plaintiff merely rented parking space for his automobile. ■It was there specifically held: “We conclude the complaint does not show a bailment, with the legal duty to exercise reasonable care against theft as incident to that relation.”

That case is authority for our holding here that in bailments, as was alleged in appellant’s complaint here, there is incumbent upon the bailee the “legal duty to exercise reasonable care against theft as incident to that relation;” and any plea which would seek to avoid bailee’s liability to exercise such care must aver that such liability was diminished by the terms of the bailment itself. In this the plea of appellee failed.

It results that for the error of the trial court in overruling the demurrers to the plea the cause must be reversed.

Reversed and i;emanded.