American Auto. Ins. Co. v. D. Parking Co.

This is an appeal on questions of law from the Municipal Court of Dayton. The action was one for damages resulting to an automobile while in the custody of the defendant, appellant herein. The record discloses that on October 27, 1945, E.J. Kyle drove his automobile into the defendant's parking lot in the city of Dayton, Ohio. He left his car on the parking lot and at the same time paid 30 cents to one of the defendant's employees and received a ticket which was designated as a "claim check," and which was submitted in evidence as plaintiff's exhibit A. This claim check contained a number in large red figures and also the following in fine print:

"This ticket entitles the lessee to the use of one parking space between the hours of 8:00 a.m. and 6:00 p.m. on the day issued. Lessor will endeavor to protect the property of the lessee but will not be responsible for loss or damage to cars, articles left therein, or accessories by reason of theft, accident, fire or otherwise. Attendants are on duty from 8:00 a.m. till 6:00 p.m. daily, except Sunday, and will park cars if desired."

When Kyle returned for his car later that day it was discovered that it was gone. Later the same day, the automobile was found abandoned near Franklin, Ohio, in a damaged condition. Kyle recovered the car, had it repaired at a cost of $90.72, and was required to spend an additional sum of $9.38 which represented towing charges and taxicab fare in repossessing the automobile. Kyle was insured by the plaintiff, appellee herein, and pursuant to the terms of the policy plaintiff paid Kyle the sum of $100.10 which was the amount of the actual damages as above stated. The plaintiff was subrogated under the terms of the policy and brought this action to recover the loss. The trial court rendered a judgment for the plaintiff for the full amount, which judgment was affirmed by the Court of Common Pleas.

The first assignment of error is that the judgment and finding of the Municipal Court is contrary to law and to the evidence. The defendant is seeking to escape liability by maintaining that the claim check was a lease which entitled Kyle to the use of one parking space in defendant's parking lot.

The question for our consideration is the relationship of the parties to each other. The facts in this case are almost identical to those of Agricultural Ins. Co. v. Constantine,144 Ohio St. 275, 58 N.E.2d 658, with the exception of the contents of the claim check. The court in that case held that the parking ticket which was delivered to the owner of the car was not binding upon him as a part of the contract. Judge Bell, at page 280, said:

"The great weight of authority in this country is to the effect that a ticket, such as was delivered to this bailor, is a mere token for identification."

Kyle testified on direct examination that he had received the claim check for that very same reason. He was asked:

"Q. Did you receive that ticket as anything else but a claim check? A. That I had left my car there and that they had custody of my car."

The evidence disclosed that Kyle's attention was never called to the printed matter on the ticket, that he never read it and was not aware of its contents.

We are, therefore, of the opinion that the relationship between Kyle and the defendant was at all times that of bailor and bailee and not that of lessor and lessee, and that, under the legal principles announced in the Constantine case, supra, the judgment below was not contrary to law.

The second assignment of error is that the judgment granted by the Municipal Court was excessive. The defendant is contending that the damages allowed by the trial court in excess of the cost of repairs were special damages which were not pleaded and, therefore, could not be proven. The items objected to were as follows:

Bus fare, Dayton to Franklin $ .63 Taxi fare, Franklin to State Police Station 5.00 Towing charge 3.75

We think those items were improperly admitted in evidence, and that they are special damages which might not reasonably be expected to result from the principal damages such as complained of in this case. Being special damages they must be specially pleaded. See 13 Ohio Jurisprudence, 260, Section 156, 25 Corpus Juris Secundum, 775, Section 139.

The judgment is affirmed, but with a remittitur for $9.38, being the total of the special damages allowed by the trial court.

Judgment affirmed with remittitur.

WISEMAN, P.J., MILLER and HORNBECK, JJ., concur.