Eckerle v. Twenty Grand Corp.

J. H. Gillis, J.

On the evening of January 5,1962, plaintiff, Glenn P. Eckerle, visited the Twenty Grand, a bowling alley and nig’htclub owned and operated by the defendant. This was plaintiff’s third visit to the Twenty Grand and as he drove his automobile onto the parking lot located to the south *5of, and adjacent to, the Twenty Grand he was met by an attendant. The attendant wore no uniform identifying his employer nor did the ticket plaintiff received give any indication of the owner or operator of the lot. Plaintiff turned his car over to the attendant, who proceeded to park the car, and retained the keys.

Plaintiff spent approximately one hour in the Twenty Grand and on his return to the lot discovered that his car had been stolen. At this point one of the attendants on duty went into the Twenty Grand stating: “I have got to find out what to do.” The automobile was found approximately 1 week after the theft with the wheels and battery missing. Several other parts of the automobile were missing and certain property had been appropriated from the trunk.

Plaintiff testified’ that on previous occasions as he drove onto the lot he observed several attendants standing along the wall next to the entranceway of the Twenty Grand. This testimony was contradicted by witness Glenn, then an employee of the lessee of the parking lot, who stated the attendants stayed in the shanty. The president of defendant did not specifically contradict plaintiff on this point; he stated that the parking attendants “stand where-ever they want to on the lot” and use the shanty for warmth in had weather. The president also denied that the attendants were employees of de- ■ fendant. Plaintiff further testified as follows:

“Q. Did you observe anything in the parking lot or its immediate vicinity to identify the parking lot ?

“A. It is right next to the Twenty Grand. It is right at the premises. * * *

“Q. Did you see any signs-there?

“A. Not to my knowledge; not to my recollection.

*6“Q. Did you see anything that had any name other than Twenty Grand?

“A. No, sir.” (Emphasis supplied.)

Subsequent to this testimony, the defendant introduced evidence which showed that a sign did exist which indicated the lot was managed by someone other than defendant. This sign was located on top of the parking lot shanty and faced the side of the building, not the entrance to the lot. Further evidence indicated that this shanty was located to the rear of the lot approximately 30 feet from the entranceway to the building, and that the lights on the shanty faced the building and illuminated the name of Twenty Grand.

Plaintiff1 instituted action to recover for the damage to his automobile and for the loss of his property. It was plaintiff’s contention that the parking lot was operated by the defendant through its agents, servants, and employees and defendant was liable for allowing someone other than the plaintiff to remove the vehicle from the lot, citing CL 1948, § 256.541 (Stat Ann 1960 Rev § 9.1721). Defendant answered and raised an affirmative defense that the lot had been leased to a third person and defendant had no “control, care, custody or possession whatsoever of any lot on which plaintiff could have relinquished possession of his automobile.”

The lease was executed on February 1, 1959,2 covered a period of five years, named Willie Anderson as lessee, and recited a rental consideration of $50 per month. The evidence failed to disclose whether the lease was recorded although it was shown that Anderson did not file under an assumed *7name until May 21, 1962. There was no set charge for parking on the lot as the attendants worked solely for tips. Each attendant paid Anderson $4 to $5 per night from the tips they received, and on busy nights, weekends in particular, Anderson employed from 8 to 10 attendants.

Across the front of the building was an illuminated sign advertising the activities of the night club, located on the chimney were electric signs proclaiming “Twenty Grand Lanes,” and on the side of the building facing the parking lot there was a sign stating “Twenty Grand Lanes.” This latter sign was illuminated by flood lights located atop the parking lot shanty. Defendant also had employed uniformed guards to patrol the area, including the parking lot.

The trial court in finding a bailment existed stated that the lease was “a simple ruse designed to escape liability for losses such as this.” Defendant appeals from the judgment awarding plaintiff $689.13.

The basic issue for this Court’s determination is whether the trial court erred when it disregarded the lease and found that a bailment did exist.

At the outset, it is important to note that this case was tried without a jury.

“ ‘The trial court saw and heard the witnesses and, as trier of the facts, was best able to judge the credibility of, and the weight to be accorded, their testimony. "We have repeatedly said that in cases tried without a jury the trial judge may give such weight to the testimony as in his opinion it is entitled to, and that in such cases we do not reverse unless the evidence clearly preponderates in the opposite direction.’” Shaw v. Wiegartz (1965), 1 Mich App 271, 277, 278, citing Mallory v. Pitcairn (1943), 307 Mich 40, 47.

The trial court appears to have based its decision on the disparity between the rent paid pursuant to *8the lease and income derived from operation of the lot. This Court is not restricted to reviewing the reasons for the trial court’s opinion. As stated by Williams v. Lakeland Convalescent Center, Inc. (1966), 4 Mich App 477, 483, “A trial court’s correct disposition of a case will not be disturbed because a wrong reason is given for its decision.”

Defendant attempts to escape liability on the basis of the lease to Anderson. However, “a lessor * * * is not completely and automatically absolved of liability for injury sustained on the demised premises merely through the execution of a lease.” Ward v. United States (DC Colo 1962), 208 F Supp 118, 122. When the lessor holds himself out as the rightful occupant and third parties are invited to use the premises, “the lessor is estopped to deny that he had such control of the premises as appeared by his representation.” 32 Am Jur, Landlord and Tenant, § 651, p 513.

In the instant ease the only representation that the lot was not operated by the defendant was the sign above the shanty bearing the inscription, “Andy’s Parking Lot.” The trial court as the finder of fact viewed photographs of the sign and heard testimony as to the manner in which the lot was illuminated, and concluded that it was “a rather obscure sign.” This Court has consistently followed the principle that in a nonjury trial, “Findings of fact shall not be set aside unless clearly erroneous.” GCR 1963, 517.1. There is nothing in the record that indicates the finding was clearly erroneous and therefore we adopt this determination.

In contrast to the obscure signs representation, there are the numerous signs on and about the building advertising the Twenty Grand. A careful reading of plaintiff’s testimony, as previously enumerated, does not affirmatively show a lack of reliance by plaintiff. Plaintiff’s answers must be read in con*9junction with the first question and in substance he states he saw no signs indicating the ownership of the lot — saw nothing but Twenty Grand signs. While it is true that plaintiff did not specifically state that he relied on the Twenty Grand signs, this can be inferred. The decisions of Stuyvesant Corp. v. Stahl (Fla, 1952), 62 So 2d 18; Santise v. Martins, Inc. (1940), 258 App Div 663 (17 NYS2d 741); Grishman v. The Lincoln, Inc. (1941), 28 NYS2d 488, contain no statement by plaintiff that he relied on defendant’s representations. However, in the Santise Case, at p 742, the court stated:

“Any relationship between the parties which entitles the injured person to rely upon the representation is sufficient foundation for the estoppel. * * * Defendant’s apparent ownership was tantamount to real ownership, and that plaintiff ‘had a right to rely on the fact that defendant seemed to be in charge of the premises owned by him.’ ”

The trial court’s finding that the lot was operated as an inducement to the general public to patronize the Twenty Grand is not clearly erroneous. This Court is of the opinion that Anderson was acting as agent for defendant either under actual or apparent authority and defendant is estopped from denying control of the premises. See Stuyvesant Corp. v. Stahl, supra.

Defendant further contends that even if a bailment is found to exist, “A bailee is relieved of responsibility for failure to redeliver [the automobile] by a showing that the property bailed was, through no fault of his, stolen. * * * The bailee must only show that the theft occurred without his fault. A’ theft does not create a fact or presumption of negligence.”

These contentions do not necessarily relieve defendant of liability.

*10“If defendant was negligent the intervening act of the thief did not necessarily break the chain of causation.” Loving v. Howard Lare, Inc. (1955), 344 Mich 97, 102.

Once a bailment is established and plaintiff has made out a prima facie case,

“It is then for the defendant to explain the loss and exonerate himself. * * * To this extent * * * a burden rests upon the defendant; but, if this question of fact' becomes a disputed one, the evidence of the plaintiff must preponderate.” Knights v. Piella (1896), 111 Mich 9, 14.

In the instant case, defendant not only failed to return the car on demand, it failed to return the keys to the car which allegedly were placed in the parking lot shanty. Defendant has failed to explain the loss of car and keys and consequently has failed to exonerate itself from liability.

Judgment affirmed. Costs to appellee.

Holbrook, J., concurred with J. H. Gillis, J.

Plaintiff, Hanover Insurance Group, appears in the matter by way of subrogation for the loss it paid under its poliey of insurance to Glenn Eekerle.

Perhaps it should be noted that this lease was executed and delivered on a Sunday although this issue was not raised either in the trial court or this Court.