1. The allegations of liability in this case are in the alternative. (1) One ground of liability is that the car was lost while in the possession of the defendants while being serviced for gasoline and oil. (2) The second ground is that the car was lost while parked in the space designated for its being parked. Where more than one ground of liability is alleged in the alternative, and one of them is insufficient in law, *Page 568 construction against the pleader requires that the allegations be construed as pleading no more than the defective ground, and this is a defect which is reached by a general demurrer. Doyal v.Russell, 183 Ga. 518; Groover v. Savannah Bank Trust Co.,186 Ga. 476.
2. I assume, without deciding, that the first alleged ground of liability is sufficient in law. Under the facts alleged, and the omission of other necessary facts, the second ground of liability is insufficient and the action was properly dismissed on general demurrer. There are two general types of parking-lot cases concerning which the law is fairly definitely settled. One is where the attendant collects fees for parking and merely designates a place to park and the driver or owner retains control of the car, locking it or not as he wishes. The other class is where attendants collect fees, assume control of the cars, sometimes parking them, moving them about where keys are left on request and tickets are issued for purposes of identification of cars on redelivery. In the first class of cases it is most generally held that there is no bailment but a mere license or privilege to park, and in some cases it is held to be a lease. In the second class of cases it is generally held that a bailment exists. 131 A.L.R. 1176, 1184; Southeastern FairAssn. v. Ford, 64 Ga. App. 871; 27 Georgetown L. J. 178 (Parking Lot Cases); 24 Am. Jur. p. 493, § 29. The determining factor in any case is, of course, whether the parking-lot operator has exclusive temporary control of the car. The facts of the instant case do not bring it within either rule, but the facts alleged and the significant ones omitted force us to place it in the first class rather than in the second. I think it reasonable to lay down as a guide the rule that where a particular space is designated for a customer to regularly park his car and the presentation of a ticket is not required for an owner to move it, there is no bailment but only a privilege to park, or a license to use the space. We do not mean to say that these particular facts always necessarily exclude the idea of a bailment. Other additional facts might alter the legal status. What I mean is that in the absence of other facts the above will be taken to mean a privilege or license and not a bailment. Construing the petition in this case against the pleader, it is taken to mean that a particular place was assigned *Page 569 to the plaintiff, that he could park it in that space and nowhere else; that he could leave his keys in it or lock it as he wished; he could move it without presenting a ticket or without the permission of anyone and that anyone with the keys could move the car at will. In this situation, the filling of the tank with gasoline, or the motor with oil, the placing of the car in the designated place and retention of the keys by the lot operator does not change the relationship of the parties insofar as the right of possession of the automobile is concerned. The placing of the car is done as agent of the plaintiff, and the retention of the keys by the lot operator is merely a bailment of the keys alone in the absence of an allegation that the retention of the keys constituted the lot operator a bailee of the car by reason of the fact that the operator of the lot had a right to move or possession of the car at will while it was parked. Under the facts alleged the owner could remove the keys from his parked car if he parked it himself, which he could do. The parking of the car by the employee of the parking lot did not subject the car to any more danger of theft than it would have been subjected to if the owner had parked it himself and removed the keys, except that the diligence of the parking-lot operator was substituted for that of the owner in respect to the keys. The allegation that the owner recovered the keys eliminates the idea that any negligence in handling the keys contributed to the loss of the car and no such negligence is alleged as being the cause of the loss. The plaintiff had his choice of allegations and chose to omit those which would have made the transaction a bailment. He nowhere alleges any fact which showed exclusive right of possession in the alleged bailee. Under the authorities and facts alleged, the petition did not set forth a cause of action. The instant case differs from Keene v. Lumbermen's Mutual Insurance Co.,60 Ga. App. 864, in that in the Keene case there was no demurrer to the petition and the jury was authorized to find that when the automobile was in fact in the lot the owner of the lot had control of the car.
I believe the majority has confused the rules of pleading with the rules of evidence. For a loss under a bailment the bailor may sue in contract or tort. If he sues for breach of the contract he need only allege the contract of bailment and the breach, or *Page 570 loss. If he sues in tort he must allege the contract and the negligence of the bailee. In either case he must allege a loss while the article was in the possession of the defendant under a contract of bailment. If he does that, and in either case, proves the loss during the bailment, the burden is on the defendant to show the exercise of ordinary care. The trouble with the majority ruling in this case is that the plaintiff has alleged two sets of circumstances, one of which shows a bailment and one of which does not. The fact that the plaintiff does not know when his car was stolen does not relieve him of the necessity to plead his case properly. I am supported in my conclusion by the fact that the plaintiff contends that the defendant is liable under both sets of circumstances, with which contention I do not agree.