Opinion
No. 33605.
March 27, 1939. Suggestion of Error Overruled June 5, 1939.
1. INNKEEPERS.
Where invited guest of companies engaged in staging for employees an annual banquet and dance at hotel was not advised that separate arrangement had been made for storage of automobiles of banquet guests, guest had right to park automobile on hotel's free parking lot according to usual custom acquiesced in by hotel as to any one having occasion to visit a guest of the hotel.
2. INNKEEPERS.
The common-law liability of an innkeeper such as made an innkeeper an insurer of property of the guest except as to loss occasioned by act of God or negligence of guest himself was not imposed on hotel with respect to damage to automobile of invited guest of companies engaged in staging for employees an annual banquet and dance at hotel.
3. INNKEEPERS.
The liability, if any, of hotel to invited guest of companies engaged in staging for employees an annual banquet and dance at hotel, for damage to automobile which attendant at free parking lot of hotel permitted stranger to take, was founded on failure to exercise ordinary care required of bailee for hire, unless hotel were mere gratuitous bailee and liable only for gross negligence (Code 1930, sec. 5108).
4. BAILMENT.
When theft of subject of bailment is disclosed either by evidence of bailor or of bailee, burden is then on bailor to show that theft was occasioned by negligence of bailee.
5. BAILMENT.
The prima facie case made by proof of delivery and failure to return bailed property disappears on proof of loss by theft, and bailee is entitled to verdict unless bailor goes forward and proves that theft was due to bailee's negligence.
6. INNKEEPERS.
Invited guest of companies engaged in staging for employees an annual banquet and dance at hotel, by leaving automobile on hotel's free parking lot knowing it to be neither customary nor required that hotel give identification checks for automobiles, assumed risk that automobile might be stolen without fault or negligence of hotel.
7. LARCENY.
A "theft" is committed if the possession of personal property is obtained fraudulently with felonious intent existing at time to deprive owner thereof and such intention is carried out.
8. INNKEEPERS.
Where invited guest of companies engaged in staging for employees an annual banquet and dance at hotel alleged that hotel negligently permitted some one other than guest to take automobile from hotel's free parking lot, through a trespass amounting to larceny, recovery for damage to automobile could not be sustained on theory that there was a misdelivery of the bailed property.
9. INNKEEPERS.
In action by invited guest of companies engaged in staging for employees an annual banquet and dance at hotel for damage to automobile which attendant at free parking lot of hotel permitted stranger to take, evidence held to establish that there was no failure of hotel or attendant to exercise ordinary care for safe-keeping and return of automobile and hence that hotel was not liable for damage thereto (Code 1930, sec. 5108).
APPEAL from the circuit court of Hinds county; HON. J.P. ALEXANDER, Judge.
Green, Green Jackson, of Jackson, for appellant.
The peremptory instruction should have been granted. The liability of appellant is not that of an innkeeper.
Amey v. Winchester, 68 N.H. 447, 39 L.R.A. 760, 39 A. 760; Fitch v. Casler, 17 Hun. (N.Y.) 126; 32 C.J. 554; 14 R.C.L. 497; Wilkinson v. Light, Heat Water Co., 78 Miss. 389, 28 So. 877; 26 A.L.R. 213, note 223; 277 Fed. 905.
Appellant is not liable for the theft of the car.
Todd v. Natchez-Eola Hotels Co., 171 Miss. 577, 157 So. 703; Firemen's Fund Ins. Co. v. Schreiber, 150 Wis. 42, 135 N.W. 507, 45 L.R.A. (N.S.) 314; Lumley v. Scott, 24 Miss. 528; Cowles v. Pointer, 26 Miss. 256; Moore v. Gholson, 34 Miss. 385; Caldwell v. Hall, 60 Miss. 333; Archer v. Sinclair, 49 Miss. 346; Miller v. Peeples, 60 Miss. 822.
Appellee expressly agreed to appellant's non-liability. Posted over the entrance was a sign whereunder appellant gave notice to those who would fain enjoy free parking that such parking must be upon express condition that no responsibility therefor thereasto would be assumed.
Meridian Fair v. Railway Co., 70 Miss. 812; Batesville Gin Co. v. Whitten, 96 Miss. 213, 50 So. 695.
Defendant's operation was not that of a garage, for it had no guard, and those who parked did so with notice that the contract under which they could park was that appellant would not be liable in case of loss.
8 C.J.S. 264, sec. 26; 15 A.L.R. 682; 4 A.L.R. 196; 45 L.R.A. (N.S.) 314; 49 L.R.A. (N.S.) 561; 79 S.E. 731.
When the car was left on the parking lot, Terry obtained no ticket upon surrender whereof possession was to be to him redelivered. The appellant did not take the car into its possession but merely suffered it to be "parked" in a lot whereof it was owner, upon express condition that while there it was not in any way therefor responsible. Appellant could prescribe the duties of those who should be upon the lot.
Colt v. Odom, 136 Miss. 651, 101 So. 853; Restatement of Law of Agency, par. 260; 76 A.L.R. 1046.
And herein the appellant did not authorize Miller directly or indirectly to take into his possession and control any car, nor did it authorize him to make delivery of any car. The record thereasto is absolutely conclusive.
1 C.J.S., 248, sec. 15; 6 Am. Jur., secs. 67 and 69, pages 194-196, and 211; 1 A.L.R. 394; 4 A.L.R. 1224; 54 A.L.R. 1336; 8 C.J.S., sec. 38; 26 A.L.R. 223; 48 A.L.R. 378.
The liability of the appellant conditioned upon the power of Miller as agent to accept and deliver and under that done, no responsibility attached.
In Richardson v. Futrelle, 42 Miss. 545, Mr. Chief Justice SHACKLEFORD defined the obligation thus: "The duties of a depository are that he shall keep it with reasonable care, and that he shall, upon request, return it to the depositor, or otherwise deliver, according to the original trust. Story on Bailments, chapter 2, section 61. `Such bailee is only liable to slight diligence, and therefore not answerable, except for gross neglect.' Ib. ch. 2, sec. 62. And he must take reasonable care of the deposit. These rules are well settled in this character of bailments."
Caldwell v. Hale, 60 Miss. 330; First National Bank v. Ocean National Bank, 60 N.Y. 278; Magee on Banks and Banking (3 Ed.), sec. 173, page 282; Morse on Banks Banking, sec. 194 (5) page 428; Zane on Banks Banking, sec. 164, page 284; Isham v. Post, 38 Am. St. Rep. 784; Griffith v. Zipperwick, 28 Ohio St. Rep. 401; National Bank v. Graham, 100 U.S. 699.
It was error not to have admitted Terry's declaration as to theft.
36 C.J. 747; Williams v. State, 63 Miss. 60.
Motion for new trial should have been sustained.
Fore v. A. V. Ry. Co., 87 Miss. 211, 39 So. 493; Universal Truck Loading Co. v. Taylor, 174 Miss. 353, 164 So. 3.
W.H. Watkins, Jr., of Jackson, for appellee.
Appellant first contends that a peremptory instruction should have been granted because of the fact that appellant was not liable as an innkeeper. In other words, that the relationship of innkeeper and guest did not exist between appellant and appellee. While the appellee readily admits that there is a division of authority on this proposition, we respectfully submit that the better reasoning supports the appellee's contention that the relationship of innkeeper and guest existed in this case. True the appellee did not register and was not assigned to a room. However, Jitney Jungle, Inc., had made a definite contract with the appellant to take care of its guests, and the appellee was a guest of Jitney Jungle, Inc.
O'Malley v. Penn Athletic Club, 119 Pa. Sup. 584, 181 A. 370.
It was the appellee's contention in the lower court that the case of Todd v. Natchez-Eola Hotel Co., 171 Miss. 577, 157 So. 703, was controlling of the case at bar. The lower court was of the opinion, however, that it was for the jury to determine whether or not Reed Miller was a servant of appellant. In the Todd case, supra, the negro in charge of the parking lot was admittedly a servant, but in the case at bar the court thought it proper to submit to the jury the question of whether or not the negro, Reed Miller, in this case was such a servant. This question was fairly submitted to the jury and the jury has found that the relationship of master and servant exists. We therefore respectfully submit that the Todd case, supra, is now unquestionably controlling.
We respectfully submit that under the Todd case, supra, whether the relationship of innkeeper and guest existed, or whether there was merely a relationship of bailor and bailee; that under either relationship the appellant was liable for the loss and destruction of this car. We say this bearing in mind that the jury has found that Reed Miller was a servant of the appellant and that his acts were, in fact, the acts of appellant itself.
Murray v. Farmers Merchants Bank, 206 S.W. 577; Hubbell v. Blandy, 24 A.S.R. 154; Marlow v. Conway Iron Works, 125 S.E. 569; Cowen v. Prasperich, 192 N.Y.S. 242.
With reference to the liability of appellant in this case, we respectfully submit that it was clearly shown by the uncontradicted evidence in this case, a mis-delivery of the bailed property. There exists undoubtedly a gratuitous bailment between the parties since the jury found that the negro, Reed Miller, was a servant of the appellant. All of the authorities agreed that in the case of a gratuitous bailment as in the case of any other kind of bailment, that it is the duty of the bailee to deliver the property only to the bailor or someone authorized by the bailor to receive it. A delivery to any other party is not excused by lack of negligence, good faith or innocence, but the property is delivered to a person other than the bailor at the bailee's peril.
In view of section 505 of Mississippi Code 1930, appellant has apparently abandoned the contention made in the lower court that this suit could not be maintained in the name of appellee, R.W. Terry. Appellant is now contending that the testimony of Terry should have been admitted for the purpose of showing Terry's declaration that the loss of his car was a theft. We respectfully submit that the testimony was incompetent for that purpose and the fact that the appellee, Terry, considered it a theft throws no light on it whatsoever.
Freed v. American Fire Ins. Co., 90 Miss. 72, 43 So. 947.
We have a situation where the appellant is claiming the right to a new trial because of the fact that a witness in their employment testified that their assistant manager was the one who employed him. They had every opportunity to find out from this witness, Reed Miller, who employed him and were at liberty to discuss the matter with him at any time. They had much more opportunity to get the facts from him than did the appellee. He was actually in the employment of the appellant. If they had made even the slightest effort to ascertain what this witness would testify to, they could have done so and they cannot now avail themselves of their failure to do so.
Redmond v. Marshall, 162 Miss. 359, 137 So. 733; Dement v. Sumner, 175 Miss. 290, 165 So. 791.
As an invited guest of the Jitney-Jungle Stores and McCarty-Holman Company, the appellee attended an annual banquet and dance tendered the employees of these companies one evening at the Edwards Hotel in Jackson, when his automobile was stealthily and feloniously taken and carried away from the hotel's free parking lot, and thereafter wrecked, damaged, and rendered almost worthless by the act of a stranger who came on the parking lot from the direction of the hotel building at about 1 o'clock in the morning — the approximate hour for the closing of the entertainment — and called for the car, accurately describing it to the attendant in charge by giving him the make, model, and color, as being a 1936 model, grey Plymouth Sedan; lead the way to its location on the crowded lot; examined the license tag number; further assured the attendant of the correctness of the identification by mentioning some dent or bent place on the car near the license tag; showed impatience and resentment because of the cautious attitude of the attendant when he tried to make sure that the car was being taken by the true owner; and who then got in it and drove away. The key had been left in the ignition, at the suggestion of the attendant, when the appellee parked the car upon his arrival at the lot about 8 o'clock that evening, in order that it might be moved about on the parking lot, "as was frequently necessary" according to an allegation made in the declaration. This was done under a rule adopted and enforced by the "gas man" who had no connection with the appellant hotel company, except as lessee of a part of the lot where he was operating a filling station.
Except for the length of time that the attendant (who was a colored boy working on the lot only for the tips that he might receive from car owners parking there) testified that he had been assisting and directing the parking of the cars, there was but little substantial evidence, if any, that he was in fact the servant of appellant, he having stated that he received his orders and instructions mostly from a Mr. Williford, the operator of the Hines Motor Company and the filling station; and who also said that the "gas man" was the one who put him to work there. He did say, however, that the assistant manager of the hotel knew that he was working on the lot and gave him instructions merely to the extent of telling him not to charge guests for parking their cars there.
However, for the purpose of this decision, we may assume that the attendant was employed as a servant of the appellant hotel company; and, from this premise, determine whether the relationship of the appellant to the appellee was that of innkeeper and guest, bailor and bailee, or landowner and invitee, so as to ascertain the degree of care required for the safekeeping of the car in question.
The declaration alleged that appellee took advantage of the parking lot "as an invitee," but it also contained other allegations which, if established by the proof, would tend to create the relationship of innkeeper and guest. The proof, however, in fact disclosed that the Jitney-Jungle Stores and McCarty-Holman Company, as hosts of their employees, arranged with the hotel management for the use of the convention hall, mezzanine floor, cloakrooms and certain other facilities in connection therewith; that a separate arrangement with the U-Drive It Garage was made for the storing and safekeeping of the cars of the banquet guests on that evening; and that it was not contemplated by the hosts of the appellee that the hotel was obligated, under this contract at least, to furnish the parking space. It appears however that neither appellee, nor his wife who was an employee of Jitney-Jungle, were advised of this separate arrangement. He therefore had the right to park his car on the free parking lot as a guest of the guests of the hotel, according to the usual custom and practice acquiesced in by the hotel as to anyone having occasion to visit a guest of the hotel for any purpose.
From this it does not necessarily follow that the relation of innkeeper and guest between the hotel and appellee was created in the sense of imposing the common law liability of an innkeeper, such as made an innkeeper an insurer of the property of the guest except as to a loss occasioned by an act of God or the negligence of the guest himself. That is to say, there did not exist in the case at bar those reciprocal rights and liabilities between appellant and appellee upon which the strict common law liability of innkeeper and guest could be predicated. Appellee was not responsible to appellant for the price of his plate at the banquet, nor did appellant acquire a lien upon any property of the appellee for the enforcement of its collection. Such liability for compensation to the hotel rested alone upon the hosts of appellee. Neither was the appellant required to serve appellee at the banquet as a member of the general public. None of the guests of the hotel that evening were entitled, as such, to be present at the banquet. Only those were entitled to attend who were especially invited by the Jitney-Jungle Stores and McCarty-Holman Company. It was held in the case of Amey v. Winchester, 68 N.H. 447, 39 A. 487, 39 L.R.A. 760, 73 Am. St. Rep. 614, that a guest attending a banquet, where he lost his hat, was not the guest of the operator of the inn, but was merely the guest of the club giving the banquet; that one who provided a banquet as caterer under a contract with the club, without any claim or lien for compensation against its guests, was not an innkeeper as to such guest. As opposed to the rule announced in that case, the appellee cites the more recent case of O'Malley v. Penn Athletic Club, 119 Pa. Super. 584, 181 A. 370, wherein liability was imposed upon the Penn Athletic Club which furnished a banquet at the instance of the League of the Sacred Heart, and at which banquet the plaintiff, as the guest of the League of the Sacred Heart, lost her expensive fur coat, which disappeared from the cloak-room furnished by the Penn Athletic Club as one of the facilities for use in connection with the banquet hall. A careful examination of the opinion in that case reveals however that the liability was predicated by the court upon the negligence of the athletic club, and not upon the theory that the club was an innkeeper as to the plaintiff and liable as such. Moreover, in that case the club failed to satisfactorily account for the nondelivery of the coat. It does not appear whether there was a conversion of the coat by some servant or employee of the club or whether it was stolen by some third person. Its disappearance was wholly unaccounted for by any proof offered by the club, and the fact that it may have been stolen by some third person was not disclosed by the proof offered on behalf of the plaintiff, as was done in the case at bar. It was shown that the attendants at the cloak-room took special notice of the fact at the time the coat was checked that it was quite expensive and valuable; and the court held that consequently a greater care was required than would ordinarily have been required in regard to an article so checked, especially where troupers or entertainers were using the cloak-room as an avenue of passage to and from the stage. As heretofore stated, the liability was predicated solely upon negligence, and there was no holding by the Court in that case that the relation of innkeeper and guest existed as between the athletic club and the plaintiff.
Other authorities are relied upon by appellee to render the appellant liable at all events in the case at bar, and especially that of Todd v. Natchez-Eola Hotels Company, 171 Miss. 577, 157 So. 703, 705. In the Natchez Hotels case, however, the plaintiff was a registered guest of the hotel for the night in its capacity as innkeeper, and his automobile was stolen by the servant of the hotel company in charge of its free parking lot, and the Court held that the hotel was required to at least "take reasonable care of the property and to safely keep it, so far as its own act was concerned." That case is therefore not controlling here; and it is unnecessary that we review the authorities and decide the specific question here as to whether the appellee occupied the relation of a guest to the appellant hotel by reason of the fact that his attendance and that of the other guests at the banquet resulted in a mutual benefit accruing to them and to the hotel, since section 5108 of the Code of 1930, by express language, defines the liability of an innkeeper to be that only of a depository for hire. The liability here, by virtue of the provisions of this statute, the hotel not being an insurer, must be founded, if at all, upon a failure to exercise that ordinary care required of a bailee for hire as to the safekeeping of the car in question; unless appellant, indeed, was only a gratuitous bailee of the car at its free parking lot at the time complained of and liable only for gross negligence.
But it is immaterial to the decision of this case whether the appellant was a bailee for hire or a gratuitous bailee; or whether the appellee was merely an invitee. In our opinion there was no substantial evidence sufficient to go to the jury tending to show a failure on the part of the appellant hotel company, or its alleged servant, to exercise ordinary care for the safekeeping and return of this automobile. 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, section 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. Then too, the declaration charges that "the defendant negligently, wantonly and through gross disregard of the rights of the plaintiff . . . permitted someone other than plaintiff . . . to take the car," etc. The case was submitted to the jury on the issue of negligence, and that alone, and not upon the theory that the appellant owed the strict common law duty of an innkeeper in the premises, so as to be liable as an insurer.
The sole question is, therefore, whether the servant of the hotel company, as attendant at the parking lot, failed to exercise ordinary care to prevent the theft of the automobile. We think that he acted as an ordinarily prudent person would have done under the same circumstances. Should he have called the police and run the risk of subjecting the hotel company to damages for false arrest or imprisonment of the person claiming the car, at a time when he, the servant, had good reason to believe, and no doubt, for ought that appears in the record to the contrary, did honestly and sincerely believe, that the person then taking the car away was its owner? Or, can it be said that he failed to exercise ordinary care in not recognizing this person as not being the true owner, under the circumstances hereinbefore mentioned, especially in view of the plausible assurances that were given by such person to him in that behalf, and where the record shows that the owner arrived at the lot in the first instance after night and parked the car at a busy hour while the others were likewise being parked, when considered in connection with the fact that the attendant could have reasonably assumed that there might be more than one car of the same model and color parked on the lot? The proper conclusion to be reached under all of the facts in evidence is that when appellee left his car on a free parking lot, instead of in a garage, where he knew it to be neither customary nor required that hotels maintain a system of giving identification checks for cars, he necessarily assumed some risk that the car might be stolen without fault or negligence on the part of the owner, of such lot, and consequently without resultant liability to him therefor.
If there was any negligence at all shown in this case it consisted of the fact that the attendant suggested to the owner that the key be left in the ignition; and the undisputed testimony was that this was done in compliance with an order or rule of the filling station operator, who had part of the lot leased, and who primarily, if not altogether, controlled the physical conduct of the attendant in the performance of his duties. However, the declaration alleged as heretofore stated that "it was frequently necessary to move the cars about on the lot;" hence the necessity for the rule as to the owner not taking away the key.
It is next contended, although not alleged in the declaration, that the judgment here appealed from may be sustained on the theory that there was a misdelivery of the bailed property, wherein liability may be imposed without regard to negligence and notwithstanding that the bailee may have acted in good faith. This is the law where a misdelivery — that is to say, a delivery by some affirmative action on the part of the bailee to a third person known not to be the owner — is made, or where, as held under some of the authorities, the property is delivered to a third person through a mistake. But that principle cannot be invoked here for two reasons: (1) the suit is not predicated upon a misdelivery, but rather upon the "negligent, wanton and gross disregard of the plaintiff's rights in permitting someone other than the plaintiff to take the car," through a trespass amounting to larceny; and (2) because there was neither a delivery nor a misdelivery shown by the proof. The car was taken, stealthily and feloniously, from the parking lot while the attendant was still endeavoring to make sure that the person taking it was the true owner. He gained possession without any affirmative action on the part of the bailee. The taking was no less by theft than if the attendant had not known of it at all. One may take the purse and money of another in the presence of either its bailee or owner, when done without resorting to violence or putting in fear, and be guilty of larceny. Dixon v. State, 169 Miss. 876, 154 So. 290; Lewis v. State (Miss.), 176 So. 600. If the possession of personal property, as in the case at bar, is obtained fraudulently with the felonious intent existing at the time to deprive the owner thereof, and such intention is carried out, a theft is thereby committed. Akroyd v. State, 107 Miss. 51, 64 So. 936.
We are therefore of the opinion that the rule here applicable is that found stated in the case of Yazoo M.V.R.R. Company v. Hughes, supra, and the other authorities therein cited; and since it was clearly shown by the testimony, without conflict, that the alleged servant of appellant acted in the utmost good faith and in the exercise of more than ordinary care and caution in his efforts to determine the bona fides of the claim asserted by the person who, as subsequent events disclosed, stole the automobile in question, the charge of negligence against the appellant was not sustained by the proof; and this is true without regard to whether the hotel was a bailee for hire or a gratuitous bailee of the car at the parking lot on the occasion in question, or whether the lighted sign at the entrance to the lot "we are not responsible for cars or articles left in cars" had any legal efficacy, and in regard to the effect of which sign we express no opinion, the authorities being in conflict thereon as to a gratuitous bailee, and the decisions of the question being unnecessary to the issue here involved, regardless of whether the appellant was a bailee for hire or a gratuitous bailee.
The requested peremptory instruction for the appellant hotel company should have been given.
Reversed and judgment here for appellant.