Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
[58 NJSuper Page 450] Plaintiff brought a county district court action to recover for loss sustained when his automobile was damaged while in defendant's parking lot adjoining its restaurant and tavern establishment. He recovered a judgment in the amount of $250, the amount stipulated as the damages suffered. Defendant appeals.
The statement of evidence and proceedings certified by the trial judge, who sat without a jury, provides the factual background. Defendant maintains a restaurant and tavern, with an adjoining parking area for the use of patrons. Plaintiff, accompanied by a friend, drove to the restaurant early one evening for the purpose of having dinner and making arrangements for a forthcoming banquet. There was an attendant in the parking area who directed plaintiff to park his car, at a particular location. He did so, locked the car, retained the keys, and went into the restaurant. When he returned to the parking area some two hours later he found that the car had been damaged, evidently by another automobile that had collided with it. The attendant was not on the lot. Plaintiff reported the damage to defendant's manager, who promised to make good the repair bill. Defendant not having paid the bill, plaintiff sued.
After plaintiff rested, defendant moved for dismissal on the grounds that plaintiff had failed to prove negligence and, further, the existence of a bailment so as to require defendant to go forward with the evidence and show lack of negligence. The motion was denied. Defendant rested without presenting any evidence and then renewed its motion. The motion was again denied.
The trial judge, in entering judgment for plaintiff, found there was a bailment because defendant, through its agent, had exercised control over the automobile by designating the place where it was to be parked. The court also referred to the custom of tipping parking attendants. The record is barren of any reference to tipping; in any event, this would be immaterial to a determination of this case.
The complaint alleged that plaintiff had "delivered and transferred possession" of his automobile to defendant "for a stated consideration and for the purpose of having [its] servant, agent or employee park" the vehicle in the parking lot; and that the damage to the car had been caused by defendant's negligence "in the driving and/or parking" of
the automobile. There is a complete lack of affirmative proof of negligence on defendant's part. The only basis upon which plaintiff could recover was by establishing a bailment. In such a case a presumption of negligence would be justified, requiring defendant to go forward with its proofs, and since none was offered, the presumption was not rebutted. Bachman Choc. Mfg. Co. v. Lehigh Warehouse & T. Co. , 1 N.J. 239, 242 (1949); Rodgers v. Reid Oldsmobile, Inc. , 58 N.J. Super. 375, 380 (App. Div. 1959).
The critical question, therefore, is whether there was actually a bailment in the circumstances. It is clear that no bailment was created, and that plaintiff had nothing more than a mere license or privilege to park on the premises by reason of his attending the restaurant for dinner and to arrange for the prospective banquet.
Essential to a bailment is that the property be turned over into the possession and control of the bailee. 8 C.J.S., Bailments , § 15(a), pp. 248-249 (1938); 24 Am. Jur., Garages, Parking Stations and Liveries , § 29, p. 493 (1939) and 1959 Supp., p. 62; Marsh v. American Locker Co. , 7 N.J. Super. 81 (App. Div. 1950), affirmed o.b. 6 N.J. 81 (1950). This is not the case of a motor vehicle housed in a garage or a building, where the bailee, who has actual control over access to the structure, is held to have primary control over the vehicle. McBride v. De Cozen Motor Co. , 5 N.J. Misc. 552, 137 A. 558 (Sup. Ct. 1927); N.J. Mfrs.' Ass'n Fire Ins. Co. v. Galowitz , 106 N.J.L. 493 (E. & A. 1930); Moore's Trucking Co. v. Gulf Tire & Supply Co. , 18 N.J. Super. 467 (App. Div. 1952).
In the last-mentioned case the court, by way of dictum , referred to the parking lot cases "where it is generally considered that the relation of bailor and bailee arises if the car keys are left in the car at the attendant's direction and if the car owner is given a check which he must surrender when he returns for the car. But the relation is one of licensee and licensor, or lessee and lessor, if the car owner retains control, * * *." (18 N.J. Super. , at page 470)
And in the Marsh case the court made passing reference to the article by Jones, "The Parking Lot Cases," in 27 Geo. L.J. 162, 178 (1938), containing an extensive review of pertinent cases to support the author's thesis that the issue of whether the delivery of a car to a parking lot amounts to a bailment on the one hand or a license or privilege on the other will turn on the amount of control exercised by ...