Opinion
No. 70-443
Decided November 30, 1971.
Bailment action. Plaintiff's automobile, stolen while parked on defendant's parking lot, was later recovered. Trial court awarded judgment for the unrecovered contents of the automobile. Defendant appealed.
Affirmed
1. BAILMENT — Automobile — Parking Lot — Bailee Liable — Contents — Express — Implied — In Plain View. When bailment is created by virtue of automobile being left on parking lot, the bailee is liable for the contents of the vehicle when the bailee has notice or knowledge, either express or implied, that there are articles of value in the vehicle, and notice of the contents of the vehicle may be implied if the contents are in plain view of a parking lot attendant.
2. Defendants — Knew — Merchandise — In Car — Liable — For Value — Specific Type — Not Known — Not Important. Where trial court found that defendants knew that some merchandise was in car left on parking lot and for this reason they agreed to keep it locked, defendants may be held liable for the value of that merchandise, and the fact that the specific type and value of the merchandise left in the car were not made known to defendants is of no importance.
3. Contents — Baggage — Actual Notice — Not Required — Determined — Bailee — Reasonably Expect. In bailment action seeking recovery for contents of baggage left in car on parking lot, actual notice of the contents of the baggage is not required for recovery; rather, liability and damages are determined on the basis of what a bailee might reasonably expect to find contained in the baggage.
Appeal from the District Court of the City and County of Denver, Honorable James C. Flanigan, Judge.
Litvak, Litvak, Schwartz Karsh, P.C., Alan Karsh, for plaintiff-appellee.
Anthony F. Vollack, for defendants-appellants.
Kole-Tober Shoes, Inc., was plaintiff below and shall be referred to as plaintiff or by name. Robert Hoery, doing business as United Auto Parks, and Raymond Foreman were defendants at trial and shall be referred to as defendants or by name.
This case concerns the liability of defendants for damages suffered by plaintiff when its station wagon automobile was stolen from the parking lot of United Auto Parks where plaintiff's salesman had parked it. The basic and undisputed facts are that plaintiff's salesman parked plaintiff's station wagon automobile on the parking lot early one morning. When the salesman returned at noon, he discovered the automobile had been stolen. The automobile was later discovered by the police, but missing from it, in addition to the spare wheel and jack, were plaintiff's sample cases and sample shoes contained therein.
Plaintiff filed suit against defendants to recover its claimed damages of $2,500 incurred as result of theft of the automobile and its contents. Trial was to the court, which found that plaintiff had entrusted the automobile to the United Auto Parks' agent, Raymond Foreman, and had requested him to lock the automobile because it contained eleven sample cases; that the sample cases were in the back seat of the wagon and in full view of Foreman when the station wagon was parked; and that Foreman had agreed to lock the vehicle but had not done so and, in fact, had left the vehicle unlocked with the keys inside on the floorboard. Although defendants dispute the finding that it agreed to keep the vehicle locked, the trial court's finding is binding on appeal since there is sufficient evidence in the record to support it. Adler v. Adler, 167 Colo. 145, 445 P.2d 906.
Defendants' first argument is that the trial court erred in finding a bailment was created as to the contents of the vehicle when the vehicle was left on the parking lot. It is argued that the bailment existed only as to the vehicle itself, not the contents.
[1] No Colorado case on the issue of a bailee's liability for the contents of a bailed vehicle has been called to our attention. Generally, however, when other jurisdictions have been faced with this issue, they have held that a bailee is liable for the contents of a vehicle when the bailee had notice or knowledge, either express or implied, that there were articles of value in the vehicle. Giles v. Meyers, 62 Ohio L. Abs. 558, 107 N.E.2d 777; Parkrite Auto Park, Inc. v. Badgett, 242 S.W.2d 630 (Ky.). Notice of the contents of the vehicle may be implied if the contents are in plain view of the parking lot attendant. Palotto v. Hanna Parking Garage Co., 46 Ohio L. Abs. 18, 68 N.E.2d 170. Under such circumstances, the duty of the parking lot operator to use reasonable care in safeguarding the vehicle has been held to include the responsibility to safeguard the contents of the vehicle of which he has knowledge. See Annot., 27 A.L.R.2d 796 for a full discussion of this point.
[2] The defendants further argue that, even if they had knowledge that there were eleven sample cases in the vehicle, they should not be held liable for the contents of the cases because the value of the contents was not made known to them. This argument lacks force because the findings were that the defendants had notice of the fact that there were samples contained in the vehicle, and for this reason they agreed to keep it locked. If defendants knew that some merchandise was in the car, the fact that the specific type and value of the samples were not made known to them is of no importance. In Barnette v. Casey, 124 W.Va. 143, 19 S.E.2d 621, it was held that a bailee could be considered to have knowledge of the fact that baggage in an automobile contained articles of some value and therefore could be liable for loss of those articles, although the bailee would not, in the absence of actual notice, be held liable for items of extraordinary value not normally found in a traveler's luggage.
[3] Actual notice of the contents of baggage is not required. Liability and damages are determined on the basis of what a bailee might reasonably expect to find contained therein.
The defendants next argue that there is no evidence to support a finding of negligence on their part and that they are not liable for damages sustained by plaintiff.
The burden of proof is upon plaintiff to establish negligence on the part of the defendant in actions involving theft of bailed property. Hebert v. Patrick, 27 Colo. App. 204, 146 P. 190.
Plaintiff proved to the satisfaction of the trial court that defendants had agreed to lock the automobile when it was left with defendants on the parking lot; that it had been left unlocked next to the alley with the keys on the floor of the vehicle; and that the attendant had left the lot unattended for a short period of time while the car was parked in the lot. Defendants presented testimony that leaving the keys in a vehicle on the floorboard was standard practice in the automobile-parking business and that they had not violated this practice and could not therefore be liable. However, since the evidence supported specific findings of the trial court that defendants had agreed to lock the automobile, evidence of what is standard practice in the parking lot business would be immaterial.
The finding of negligence is supported by evidence and the permissible inferences to be drawn from such evidence, and we therefore affirm the finding that defendants were negligent.
The last argument of defendants is that the damages awarded were excessive. Defendants argue that because only one shoe of a pair was in the sample case, they were in fact valueless to anyone but plaintiff. This is mere argument, not proof. Plaintiff offered substantial evidence to support its claim concerning the value of the shoes, and it was the trial court's duty to reach a decision as to value. Its determination, being supported by the evidence, will not be disturbed.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE DWYER concur.