LEE TIRE & RUBBER COMPANY OF THE STATE OF NEW YORK, a corporation of the State of New York, Appellant, Defendant Below,
Devlin W. DORMER, Respondent, Plaintiff Below.
Rehearing Denied Nov. 1, 1954.
Action for damages resulting from theft of plaintiff's automobile from defendant's parking lot. The Superior Court of New Castle County entered judgment on a verdict in favor of plaintiff, and defendant brought error. The Supreme Court, Bramhall, J., held that failure to submit to jury question of existence of bailment relationship between plaintiff and defendant and the different legal consequences flowing therefrom constituted reversible error.
Judgment reversed, application for judgment for defendant denied, and new trial granted.
Under rules of Superior Court, refusal to permit defendant to introduce in evidence pre-trial deposition of plaintiff as part of defendant's case in chief was error, but whether such error was prejudicial was immaterial, where a new trial was required on other grounds. Superior Court Rules, Civil Rule, 26(d)(2), Del.C.Ann.
[48 Del. 580] Irving Morris, of the firm of Cohen & Morris, Wilmington, for plaintiff.
Albert L. Simon and Stephen E. Hamilton, Jr., Wilmington, for defendant.
SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.
This appeal involves the right of plaintiff to recover for damage to his automobile and loss of its use resulting from its theft from defendant's parking lot.
Plaintiff entered into an agreement with defendant for the parking of plaintiff's automobile on the parking lot of defendant. [48 Del. 581] Under the arrangement between the parties plaintiff was to be permitted to store his automobile on a 24-hour basis, for which he was to pay defendant the sum of $10 monthly. It was also originally understood that plaintiff was to leave with the defendant a set of keys to his automobile in order to permit defendant to comply with city fire regulations and to enable it to move plaintiff's automobile on the parking lot as necessity might require. The latter arrangement continued only for approximately a week, after which no keys were regularly left by plaintiff with defendant. Plaintiff understood that no attendant was regularly on duty after 5:30 p. m.
On September 10, 1951, the date on which the circumstances out of which this action arose occurred, plaintiff parked his automobile on the parking lot of defendant. Plaintiff testified that defendant's attendant requested plaintiff to leave the keys with him (or in the car), stating that it would be necessary to move plaintiff's car. This was denied by the attendant, who stated that no such conversation
occurred. Later in the evening of September 10th, while plaintiff's car was on the parking lot of defendant with the keys in the ignition, plaintiff's car was stolen. Plaintiff instituted suit against defendant for the damage sustained as a result of the theft, claiming that defendant was negligent in leaving keys in plaintiff's car. Upon the trial of the case below the jury found for plaintiff and judgment was entered upon the verdict. Defendant appealed.
Defendant's appeal is based upon rulings of the trial judge and his charge to the jury. They ...