Kravitz v. Parking Service Co.

In order to further illustrate the view taken by this court and in deference to the urgent argument of learned counsel for appellee, it is again observed that in bailment contracts when the relation of bailor and bailee is brought into being the law implies a duty on the part of the bailee to exercise reasonable care for the bailed property and a consequent liability for negligence in regard thereto, unless there are special provisions in the contract to the contrary. Such special provisions, seeking modification of the contract implied by law from the bailment relation, to be effective, must be either a part of the original contract of bailment or contained in a valid amendatory contract. To be effective the assent of both parties thereto is necessary. Modification — or, as in the case at bar, reduction of liability implied by law from the bailment relation — may be accomplished by notice. In order, however, that such notice effectuate this result, the terms of the modification must be assented to by the other party. Am.Jur., supra, Sec. 177.

The authorities are agreed that, if at the time the bailment is made the bailor has actual notice of certain terms which alter or modify the ordinary relation implied by law, delivery of the property to the bailee amounts to an assent to these terms. Without such actual notice or knowledge, however, he is not bound thereby unless from the circumstances he is chargedwith notice.

Interesting discussion of this subject is found in 6 Am.Jur., p. 271 et seq. The circumstances under which the bailor is charged with notice are treated in Sec. 178, pp. 273, 274:

"Where qualifying provisions are contained in what is recognized by both parties as the contract of bailment, the bailor, according to general principles of contract, *Page 527 is charged with notice thereof, whether or not he actually knows of the particular provisions, or reads them, and the same is true in respect of other documents or papers connected with the bailment which he knows, or ought to know, contain conditions of the contract. However, the question of whether or not he is charged with notice of such provisions so as to be deemed to have assented thereto by making the bailment presents more difficulty where it arises with respect to conditions not expressly embodied in the main contract of bailment, but contained on posted notices, receipts, billheads, invoices, tokens, advertising matter, etc. Whether or not such provisions become a part of the contract is ordinarily determined upon the principle that one party can insist only upon such terms as are so set forth and so related to the writing and subject matter of the contract as fairly to manifest to the other party an intent that they are to be obligatory upon him; fair dealing to him, upon the assumption that he will act with reasonable caution, must be the test, and largely each case must stand by itself.

"In accordance with the foregoing principle, the general rule supported by the modern authorities appears to be that the bailor, unless his attention is called to the fact that suchconditions are intended as a part of the contract, is notcharged with notice, where he has no actual knowledge, ofprovisions limiting liability which appear upon something notapparently related to the contract itself, or given to thebailor ostensibly for some other purpose. There is authority which justifies the rule on the ground, among others, that the bailee, if he wishes to qualify his contract, should do so in an unmistakable manner, and it is not reasonably to beexpected, nor is the bailor required to anticipate, thatimportant terms of a contract will be found upon what isaccepted merely as a means of identification or for some otherpurpose which to a reasonable man would not appear to begermane to the agreement itself." (Emphasis supplied.)

Comment on page 275, Section 179, is specifically pertinent to the plea of the instant defendant, to-wit:

"Although there is authority apparently to the contrary, the trend of the more recent authorities is to the view thatreceipt from the bailee at the time of the bailment of what isostensibly a token for later identification of the bailedproperty, such as a check for a parcel left at a parcel stand or a numbered identification slip for an automobile left at a garage or parking station, does not bind the bailor as to provisions, purportedly limiting the bailee's liability, which are printed thereon, where his attention is not called to them and he has no actual knowledge at the time of the bailment that they are supposed to become part of the contract. The mere retention of such a check without such knowledge does not bind him to the limitation. The mere fact that the bailor knows that there is writing on the token is immaterial, as he is not bound to read it unless he has reason to believe it contains terms * * *" (Emphasis supplied.)

The same subject is similarly treated in 8 C.J.S., Bailments, § 26 c, page 264 et seq. This authority (page 266) reaches the conclusion: "Where, however, the bailor receives and retains the ticket without knowing that it contained any special terms or conditions and without his attention being called to that fact, and on the assumption that the ticket was merely a token or means of identifying his property, the majority of cases hold that such retention of the ticket does not constitute an acceptance of the terms therein and so he is not bound by the provisions for limited liability, on the theory that the minds of the parties never met: hence, the special contract was never entered into. The mere fact that the bailor examined the ticket sufficiently to know that there was printed matter thereon, and had opportunity to examine it critically, and had capacity to understand the meaning of it still does not make him chargeable with notice of the special provisions therein, for he is under no legal duty to read such matter, since, as has been stated, the ticket is considered primarily as a token or means of identification which is to be surrendered when the property is redelivered."

These principles impress this court as sound and based upon common sense. Likewise, they are not inharmonious to our decisions. In applying them here, the defendant's plea is wholly insufficient and apparently avoided the inclusion therein of those allegations necessary to make it a sufficient answer to the action laid. The plea cannot be interpreted as asserting that the provisions on the ticket were a part of the contract of bailment. From its allegations it does not appear that the plaintiff, having had actual notice or knowledge of the same delivered the automobile to defendant, *Page 528 nor are the averments sufficient to warrant the legal conclusion that under the circumstances, therein alleged, the plaintiff should have known or (quoting from the authorities) was "charged with notice" of them.

Apt demurrer pointed out the defect and in the overruling thereof the trial court, in our view, fell into error.

Opinion extended and application overruled.