On July 12, 1941, appellee, J. L. Turner, drove his automobile to a public parking lot that was conducted by appellant, T. C. Rhodes, and, as was the custom, delivered his car to a negro employee who worked at the said lot, and the said employee took the car and parked it at some place on the lot and gave Turner the customary claim check or parking ticket which served to identify the delivered car.
As was also the custom and practice, after Turner left the car and went with his family to visit a place of amusement, the negro attendant moved the car to another position on the lot, leaving it facing one of the two public streets that bound the parking lot and at a place where there was no barrier or obstruction of any kind to prevent the car from being driven from the lot and into the street and away, the keys having been left in the ignition lock.
When Turner and his family came back to claim the car, the said negro employee took the claim check, or ticket, and the customary fee for parking the car and after going over the premises announced to Turner that he could not locate the car. The negro told Turner that he had parked the car at a certain spot just about thirty minutes before Turner called for it, showed him the vacant place where he said he had parked the car and said that he did not know what became of it.
Turner, who does not live in the City of Fort Worth, where the parking lot is maintained, made a number of trips to Fort Worth and to Dallas in search of the car. It was finally located in Laurel, Mississippi, and Turner went to such place and found a man incarcerated there who admitted that he stole the car from the said parking lot.
The car had been driven more than 6,000 miles since it was taken from the parking lot.
Turner had insurance on the car, and the insurance carrier paid him the sum of $114.02, which was the estimate made by one of the automobile sales and service companies of Fort Worth, as the amount necessary to repair the damage done to the car in the interim. *Page 210
Turner brought suit against Rhodes and alleged the fact of the ownership of the parking lot, its conduct by defendant, the delivery of the car to defendant's employee, the payment of the parking fee, and that the entire length of the lot fronting on the south line of Sixth Street was kept open, without any rail or barrier being provided at such side of the lot, and that it was maintained so that an automobile could be readily driven in and upon and out and from such lot at any and all points along its said front side with ease and convenience, and that the same conditions exist as to the east line of such lot for more than one-half of its length.
The allegations of the petition are sufficient to set forth a contract of bailment for hire, and plaintiff pleaded that it was the duty of the defendant and his employee in charge of the premises to use and exercise reasonable care and diligence to protect the automobile from damage, theft, pilferage or other injury and to redeliver the same to him in as good condition as said car was when it was delivered to the defendant, but that the defendant failed and neglected to keep proper watch over and care for the car and as a consequence of the negligence and carelessness of defendant, plaintiff's car was taken from the parking lot or driven away without the defendant's employee, to whom it had been delivered, knowing what became of it.
He further alleged that his car was a 1941 Chevrolet sedan, with serial number AA94379 and six cylinders, was in good condition and of the value of $975; that he recovered the auto 30 days after it was taken and found that it had been driven more than 6,000 miles since it was taken from him and that its parts had been damaged and worn (as shown by an exhibit attached to his petition and made a part thereof) in the estimated value of $115; that merchandise and personal property left in the car of value of $21.59 had been lost or disposed of; and that he had expended much valuable time and money in an effort to find and recover his car, which was shown by the exhibit to his petition and made a part of same.
He prayed for a recovery of all these detailed items and others not necessary to mention.
The exhibit is itemized and is assuredly sufficient to put the defendant on notice of what the plaintiff expects to prove and is attempting to recover.
No special exceptions to the petitions of the plaintiff and intervener appear to have been presented and acted upon.
The defendant set forth a general denial, and specially pleaded that it was his custom, in keeping with the usual and customary business practice incident to the operation of a parking business, to issue a check, or claim ticket, to each person who delivers a car to defendant for parking; but that he does not assume the responsibility for the care and safe-keeping of automobiles or of personal property left in cars, and that he only offers the public the easement and privilege of occupying a part of his premises for a nominal charge, which is fifteen cents when the car is parked for three hours, or less, and twenty-five cents where it is parked more than three hours and less than twenty-four hours; that he delivered to plaintiff the customary claim check which had plainly written upon it the following: "Not responsible in case of fire, theft or for articles left in car"; that plaintiff accepted such claim check and therefore he then and there entered into a valid and binding contract whereby the defendant's liability in connection with the car was expressly limited to the furnishing of a place for parking it, but without any liability, expressed or implied, in the event the car was stolen.
The cause was tried to the court, a jury being waived by all parties, and the court found for plaintiff and rendered judgment of recovery for three pleaded items, viz.: $21.50 for loss of the items of personal property left in the car; $60 for loss of time and expenses necessarily used by plaintiff in searching for the car; and $114.02 for the use and benefit of intervener, Home Insurance Company, to reimburse such intervener for the sum paid by it to plaintiff under the terms of the insurance contract.
Rhodes having appealed contends in his brief that there are three issues, viz.: (1) There was no evidence showing negligence, since the evidence does not show how the car was taken from the lot; (2) that the proof positively shows that the car could have been removed whether the defendant was or was not negligent, and therefore the act of negligence was not, as a matter of law, the proximate cause of *Page 211 the damage; and (3) there is no competent proof of the elements of damages found by the trial court.
As relating to the first issue, in point one the appellant asserts that there is no evidence in the record tending in any way to show whether or not his employee kept a proper lookout for the safety of the car and the finding of negligence is not supported by a scintilla of evidence.
We see no merit in the contention. The testimony shows that on one entire side of this parking lot, it is maintained without rails or barriers of any kind and so constructed that cars may be driven into the lot and from it at any point or place and onto the adjoining public street, and that one-half of another side of the lot is similarly maintained and constructed.
It is testified to that there was only one person on duty at the lot; that the attendant not only left the ignition key in the auto lock but that when the attendant could not locate the car, he told the plaintiff he had moved it about thirty minutes before it was called for, and he had placed it next to the street, where the evidence shows it was easily driven from the lot by any one who cared to drive it off, and the attendant pointed out the exact spot where he said he had parked it; the place at that time being unoccupied by any car.
The testimony shows that the defendant owns and operates another parking lot just across the street from the one involved in this suit.
Rhodes testified that it was the duty of his attendant "to take care of cars when they went in there, to park them and protect them so far as they could protect them at all times". At another time he testified that the negro attendant's duties were "to park cars, get out cars when the customers come, and to watch the lot".
The testimony shows that it was defendant's theory that the car was stolen and the subsequent facts prove that his theory was correct. He even advanced the theory that some soldier had taken the car and said that this was being done and that doubtless the car would be found in another parking place, or abandoned on the street at some place.
Appellant seems to contend that it was the duty of the plaintiff to account for the whereabouts and actions of the negro employee, from the time he says he last parked the car, at a particular place, up and until the owner called for his car.
We see no merit in the contention; and we see no merit in the second point urged under the second issue raised, to the effect that the evidence discloses that the thief could have slipped into the lot and driven the car off whether or not a proper lookout was maintained, and that this negatives, as a matter of law, the existence of proximate cause.
We are here dealing with negligence because of the omission to perform a duty and not with negligence in the commission of some act.
Taking all of the facts disclosed by the evidence and the statements made by the negro attendant, we cannot say that there is not a scintilla of evidence to support the trial court's finding that the employee did not keep a proper lookout for the safekeeping of plaintiffs car.
The mere fact that the defendant testified that it was possible for a thief to sneak upon his parking lot and get in a car and drive it from the premises even when his attendant was watching the cars and that this could be done and his attendant could not prevent it, does not, as we see it, relieve the defendant of his responsibility and negative the existence of proximate cause as a matter of law.
Rather does it occur to us that, if the defendant knows such a condition exists at his public parking lot as he was then and is now operating it, there devolves upon him a degree of care in the protection of his customers' cars that is commensurate with the danger of loss to which his parking place evidently subjects his patrons' cars. Crawford v. Hall, 56 Ga. App. 122, 192 S.E. 231.
Points three and four contend: (3) The proof does not show the market value of the car at the time of its loss and therefore does not sustain a finding of damages to the car amounting to $114.02, and (4) the proof does not show facts necessary to award damages for plaintiffs loss of time and expenses in searching for the car, and inasmuch as the trial court found that such search was not necessary and did not result in a return of the car, such expenses are not recoverable in any event.
The car was recovered but was damaged, as alleged, and had to be repaired in order to put it in good condition. *Page 212
Assuredly, the plaintiff could not be heard to ask for the value of the car as if it had been converted, and the fair, equitable and just basis of recovery was whatever amount was necessary to put it in the condition in which it was when taken from the parking lot.
When we take into consideration the make and model and year of make of this car, the fact that it had been driven only about 19,000 miles, that it was shown to be "in good condition" when it was parked with appellant, and what the estimate was covering the necessary repairs, and that a reputable concern made such estimate, and that the insurance carrier paid such sum and accepted such estimate as being fair, and when we further take into consideration the cost of the car when purchased, and the testimony of the Insurance Adjuster as to the market value of the car and that it was worth $800, less the amount that was paid to restore it to its original value (meaning $114.02 paid to Turner), we cannot say that there is no evidence of probative force to sustain the judgment.
The Supreme Court, speaking through its Commission, in an opinion by Mr. Justice Smedley, Simmonds et al. v. St. Louis, B. M. Ry. Co.,127 Tex. 23, 91 S.W.2d 332, 335, opinion adopted, has reviewed many decisions and has laid down a most wholesome rule flavored with an abundance of common sense.
The cited case was one for the recovery of the value of a mule killed by the railroad, and the opinion states:
"From the authorities above discussed and quoted, we conclude that juries in weighing opinion testimony and reaching their verdicts, when all or most of the evidence on the particular issue is of such character, may, and, as Justice Field said, must act intelligently, give effect to the testimony by applying to it, and considering it in the light of, their own general knowledge and experience in the subject of inquiry.
"There was in this case no evidence as to the size, age, disposition, or other characteristics of the mule to aid the jury. Their problem was simply to find the value of an ordinary gray mule. They had the plaintiff's opinion of the value, but his judgment is not to be substituted for theirs.
"The subject is not one for experts, but is one about which a jury may be assumed to have, or be able to form, correct opinions of their own. In such case, while they are not bound by it, the jury may not disregard the plaintiff's opinion, but in valuing that opinion and in arriving at their verdict, they have also for guidance, and should be influenced by, the plaintiff's interest in the result of the suit and their own common sense, experience, and knowledge of the subject. This being true, the jury's finding as to the amount of damages was not without evidence to support it, and the trial court was not authorized by the amended statute to disregard the finding and substitute for it the opinion of one of the plaintiffs."
Assuredly, we may ascribe to the trial judge who heard the instant case as much common sense, experience and knowledge of the subject that was before him as is in such apt words ascribed to the jurors in the cited case.
Appellant strenuously urges that the trial court found that it was not necessary for plaintiff to expend time and money in searching for the car and that such expenditures of time and money did not result in the return of the car, and that therefore the trial court erred in awarding judgment for these items.
We believe that it was the duty of plaintiff to do all that was reasonable in an effort to find and recover his car. Had he failed to put forth such efforts, it could have happened that the car would have been a total loss.
We believe the trial court, under the rule noted in the cited case, had evidence before him to support the judgment rendered.
All assignments of error are overruled and the judgment is affirmed.