Appeal, No. 125, Jan. T., 1959, from judgment of Court of Common Pleas No. 6 of Philadelphia County, June T., 1957, No. 3485, in case of Martin A. Taylor and Sarah Taylor, individually and trading as Martin A. Taylor Company v. Philadelphia Parking Authority et al. Judgment affirmed. Assumpsit. Before OLIVER, P.J., without a jury. Defendants' motions for compulsory non-suit granted and judgment entered. Plaintiffs appealed.
Lionel B. Gumnit, for appellants.
Leonard J. Cook, with him Harold Cramer, and Shapiro, Rosenfield, Stalberg & Cook, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE MCBRIDE
Plaintiffs brought suit in assumpsit against the defendant, Philadelphia Parking Authority, alleging, inter alia, that they were regular monthly parkers at a garage operated by defendant in Philadelphia; that defendants had been informed that in their business the cars of plaintiffs carried valuable jewelry samples and that such cars were equipped with burglar alarms; that plaintiffs were to park their cars in the garage and lock them retaining control of the keys thereto at all times. On or about March 8, 1957, one of plaintiffs' cars was placed in defendant's garage and locked as usual. The complaint goes on to aver that this car contained approximately $8,000 worth of samples of various types of jewelry; that on or about March 19, 1957 the car was missing from the garage and was reported to the police as stolen. On March 23, 1957 the car was found but the jewelry was missing. It is plaintiffs' contention that the defendant violated a bailment contract in failing to return the automobile and its contents and sought judgment. Defendant's answer denied the material averments of plaintiffs' complaint.*fn1
The case was tried by the court without a jury and at the conclusion of plaintiffs' case, defendant moved for a non-suit on the ground that there was no bailor/bailee relationship but instead, a lease of parking privileges and consequently there was no liability for loss by theft in the absence of proof of culpable negligence on its part. See Moss v. Bailey Sales and Service, 385 Pa. 547, 123 A.2d 425. The trial court entered a compulsory non-suit which was affirmed by the court en banc. This appeal followed.
This is a case of first impression before the appellate courts of Pennsylvania. For all practical purposes it could be considered as a case stated because there is very little, if any, dispute as to the facts. The only dispute is with regard to the legal consequences of those facts.*fn2 The parties repeat their respective contentions here.
In order to fix liability upon the proprietors of an automobile parking place, it is necessary to ascertain if there is such a delivery of or assumption of control of the automobile entrusted to him as to create a bailment. One who merely leases automobile parking privileges is not the bailee of the parked car and consequently is under no duty to guard against loss by theft. 4 Williston on Contracts (Rev. Ed.) 2960, § 1065a.
The decided cases recognize two principal classes of legal relationships in ...