Hicks, Arch. R., Jr.

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NOTES AND COMMENTS 01The question raised in the principal case is one of considerable mag-nitude, and it merits unusual consideration by reason of the fact that itdeals with a constitutional provision which purports to reserve rights andpowers to the people, not as individuals, but as a body politic. TheGeneral Assembly ought to enact legislation at the earliest possible mo-ment for the purpose of preventing the repeal or modification by thecouncils of non-charter cities of initiated ordinances and ordinances ap-proved by a referendum vote. Such legislation would secure to thepeople of non-charter cities the protection which they intended to pro-vide to themselves when they enacted the constitutional provisions withregard to the initiative and referendum.JAMES R. TRITSCHLER.PERSONAL PROPERTYBAILMENTS-STATUS OF OWNER OF AUTOMOBILE PARKINGLOT-LIABILITY FOR THEFT.One Sheehan parked his car in defendant's parking lot and receiveda parking ticket for which he paid the requisite fee. The ticket dis-claimed any liability on the part of defendant for theft. The car wasstolen, even though Sheehan had locked it. One of the two attendantsin charge at the time saw the thief driving the car away, but was unableto overtake him. Plaintiff insurance company, having paid Sheehan forhis loss, seeks to recover the value of the car. The Court of Appeals, inreversing a judgment of the Municipal Court of Cleveland, held thatdefendant, a bailee for hire, was not negligent and therefore not liablefor the theft of the car. One judge dissented. Syndicate Parking, Inc.v. General Exchange Ins. Corp., et al., 17 Ohio Abs. 596 ('934).The court, without discussing the point, proceeded upon the as-sumption that the transaction in question constituted a bailment for hire.Whether or not there was a bailment depends upon the extent of controlexercised by defendant over the car. Some courts have held that thougha fee is charged, if the owner can remove the car at will, there ismerely a license to park and not such a surrender of control as to con-stitute a bailment. Lord v. Okla. State Fair dss'n., 95 Okla. 294, 219Pac. 713 (1923); Thompson v. Mobile Light and Railway Co., 211Ala. 525, 101 So. 177, 34 A.L.R. 921 (1924); and see Suits v. Elec-tric Park Amusement Co., 213 Mo. App. 275 (1923). In none ofthese cases was there any condition precedent to the owner's right topossession. But where a condition precedent, such as the presentation62 LAW JOURNAL -DECEMBER, 1935of a parking ticket, has existed, the courts have classed the parking com-pany as a bailee for hire. Galowitz v. Magner, 208 App. Div. 6, 203N.Y.S. 421 (1924); General Exchange Ins. Corp. v. Service ParkingGroundsInc.,254 Mich. 1, 235 N.W. 898 (93I) ; Keenan Hotel Co.v. Funk, 93 Ind. App. 677, 177 N.E. 364 (x93i); Baione v. Heavey,103 Pa. Super. 529, i58A. I81 (932). The fact that it was neces-sary for the owner to call at the office for his keys was held to havemade the parking company a bailee in Beetson v. Hollywood 4. C., io9Cal. App. 715, 293 Pac. 821 (930). However, such a conditionprecedent has not always been required. In Doherty v. Ernst, 284 Mass.341, 187 N.E. 620 (1933), where keys were left in the car so thatthe attendant might move it about, the court found that there wassufficient control in the parking company to constitute a bailment. Onthe basis of these decisions the court in the instant case was justified inassuming that a bailment existed, since the owner could be excludedfrom possession until he surrendered the parking ticket. See 30 MichiganLaw Review, 614 (1932); 12 Texas Law Review, 347 (1934)Had the transaction in question been considered as a license to parkand not a bailment, defendant would have been under no duty to exer-cise care against theft. Thompson v. Mobile Light & Railway Co.,supra; Lord v. Okla. State Fair dss'n., supra. But since the court heldthere was a bailment, defendant was liable for any lack of ordinary careover the car. Hotels Statler Co. v. Safier, 103 Ohio St. 638, 134 N.E.460, 22 A.L.R. 1190 (1921); 3 R.C.L. 96. And the fact that theticket disclaimed the parking company's liability for theft would notrelieve defendant of liability if the car was stolen through its negligence.Keenan Hotel Co. v. Funk, supra; Baione v. Heavey, supra.The courts uniformly hold that misdelivery imposes an absoluteliability on a bailee regardless of negligence. Potomac Ins. Co. v. Nick-son, 64 Utah 395, 231 Pac. 445, 42 A.L.R. 128 (1924); Hall v.Boston & W. R. Corp., 14 Allen (96 Mass.) 439, 92 Am. Dec. 783(1867). But where the car is stolen, negligence must be proved, as abailee is not an insurer against theft. 3 R.C.L. 97. A failure to returnon demand raises, in itself, a strong inference of negligence, and it hasbeen held in cases similar to the principal one that a parking companywas clearly negligent in permitting a car to be removed without a sur-render of the parking ticket. Galowitz v. Magner, supra; General Ex-change Ins. Corp. v. Service Parking Grounds, Inc., supra. Viewingthe instant case in the light of these decisions, defendant might havebeen found negligent in permitting the car to be entered and removedwithout a surrender of the parking ticket.. The dissenting opinion sup-NOTES AND COMMENTS b3ports this view, holding that the facts did not justify a reversal of thejudgment of the trial court. However, since one of the attendants, assoon as he discovered the thief, attempted in vain to stop him, there isperhaps some justification for the court's decision.ARCH. R. HICKs, JR.RECEIVERSAPPOINTMENT WHEN CORPORATION CONSENTS-COLLATERALATTACK.The First National Bank & Trust Co. of Hamilton, a creditor ofthe Fischer Hardware Co., took judgment upon a cognovit note againstthe company on March 2, 1932. After entry of judgment a motionwas made for a receiver on the ground that execution would jeopardizethe financial stabilit, of the Hardware Co., the assets of which shouldbe conserved for the benefit of general creditors. The company con-sented to such appointment.September 21, 1933, the plaintiff, Michigan State Industries, filedsuit against the Hardware Co. on a book account and recovered judg-ment, but execution was returned unsatisfied. Proceedings in aid, insti-tuted November 13, 1933, were dismissed upon determination that theplaintiff was not entitled to subject property in the hands of the receiverto execution upon his judgment.The Court of Appeals said that the appointment of the receiver wasvoid, notwithstanding the defendant corporation's consent, there beingno jurisdiction since there was an adequate remedy at law by levyingexecution. Being void, such appointment was open to collateral attack.But the plaintiff's delay in filing suit was held to amount to laches suf-ficient to give rise to estoppel, so that there was no error in dismissingthe proceeding in aid of execution. Miichigan State Industries v. FischerHardware Co., i9 Ohio Abs. 184, 2 Ohio Op. 171, 197 N.E. 785(1934).In Ohio, the power to appoint receivers is conferred by statute. Areceiver may be appointed: "4. After judgment, to dispose to propertyaccording to the judgment, or to preserve it during the pendency of anappeal, or when an execution has been returned unsatisfied and thejudgment debtor refuses to apply the property in satisfaction of the judg-ment. 6. In all other cases in which receivers heretofore havebeen appointed by the usages of equity." General Code, Sec. I 1894.The general assertion is often made that ordinarily a receiver willnot be appointed at the instance of a mere simple contract creditor. The

Bailments -- Status of Owner of Automobile Parking Lot -- Liability for Theft

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Bailments -- Status of Owner of Automobile Parking Lot -- Liability for Theft

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