{
  "id": 8722615,
  "name": "National Garages, Inc., v. Barry",
  "name_abbreviation": "National Garages, Inc. v. Barry",
  "decision_date": "1950-06-12",
  "docket_number": "4-9228",
  "first_page": "593",
  "last_page": "596",
  "citations": [
    {
      "type": "official",
      "cite": "217 Ark. 593"
    },
    {
      "type": "parallel",
      "cite": "232 S.W.2d 655"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "233 S. W. 825",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "opinion_index": 0
    },
    {
      "cite": "150 Ark. 8",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "case_paths": [
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    {
      "cite": "208 Ark. 951",
      "category": "reporters:state",
      "reporter": "Ark.",
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  "last_updated": "2023-07-14T21:48:24.265381+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "National Garages, Inc., v. Barry."
    ],
    "opinions": [
      {
        "text": "Holt, J.\nThis appeal comes from a judgment, October 5, 1949, for appellee against appellant in the amount of $505.66, as damages for the unlawful and unauthorized removal of appellee\u2019s automobile from appellant\u2019s parking lot in Little Rock on August 16, 1948, at about 11:00 a. m., without appellee\u2019s knowledge or consent.\nAppellee was the only witness in the case. At the close of his testimony, appellant, without offering any testimony, asked for an instructed verdict in its favor. Appellee also asked for a verdict in his favor for the amount claimed, whereupon, the court took the case from the jury and entered a judgment for appellee, as indicated.\nAppellee owned a 1941 Buick automobile and paid appellant $8.00 per month in advance for use of its storage lot. He testified, in effect, (quoting from appellant\u2019s abstract) : \u201cThat they put a sticker on the windshield, and he would drive in and leave his car in the driveway, with the key in the car and the attendant would park it then, or when he could get to it; that he had no particularly assigned space, he just left his keys in the car and they parked it; that on August 16, 1948, he parked there about nine o \u2019clock in the morning and went to his office, then later on in the morning he went out on a trip and got back about eleven and drove in and left the car again in the driveway for the attendant to take care of. He then went to his office, After lunch, about three o\u2019clock, he went out to look at another piece of property and he went to get his car and it wasn\u2019t on the lot.\u201d\nAppellant says: \u201cIt is undisputed that appellee parked his automobile on the day in question on appellant\u2019s parking lot; that appellee paid a consideration therefor; and that the appellant thereby became a bailee for hire; that the automobile was missing when appellee. called for it; that the automobile was stolen from- the parking lot; that the thief was convicted and\u00e1is now serving a sentence in the Arkansas Penitentiary; that the automobile was recovered by the Sheriff at Morrilton, Arkansas, and returned to the appellee in a damaged condition. \u2019 \u2019\nFor reversal, appellant states his contention as follows : \u201cIt is the contention of the appellant that although it was a bailee for hire it was not an insurer and was only liable in the event it was proven to have failed to use ordinary care to protect appellee\u2019s automobile.\u201d\nThe rule is well settled that when each litigant, as here, asks for an instructed verdict and no other instructions are requested by either side, they, in effect, agree that the issue may he decided by the court, and its ruling, having the same effect as the verdict of a jury, will he permitted to stand if there is substantial evidence to support it. (General Contract Purchase Corporation v. Row, 208 Ark. 951, 188 S. W. 2d 507, Headnote 1.)\nIn the present case, it is conceded that appellant and appellee occupy the positions of bailee and bailor, respectively, and that appellee\u2019s car was stolen and damaged while in the care and custody of appellant, the keeper of the parking .lot. It was further shown that the parking lot attendant knew the appellee and knew which car was his, so the trial court could have inferred that the theft was the result of appellant\u2019s negligence. When these facts were established, a prima facie case was made against appellant and it then became its duty to go forward with evidence to rebut this prima facie case. This, appellant has failed to do. In fact, it offered no testimony at all.\nIn these circumstances, the well settled rale is stated by the text writer in 24 Am. Jur., p. 508, under the subject \u201cGarages, Parking Stations and Liveries,\u201d \u00a7 59, \u201cEvidence \u2014 Burden of Proof,\u201d as follows: \u201cThe general rule seems to be that a prima facie case is ordinarily made out for the bailor when he proves the bailment and a failure on the part of the bailee to return the property on demand. The duty then usually devolves on the bailee to \u00a3go forward\u2019 with evidence to rebut the prima facie case. Thus,\u00ab\u00a3>ne who brings an action against a garage or livery stable keeper based upon the latter\u2019s negligence ordinarily has the burden of proving such negligence or want of due care on the defendant\u2019s paid; and when a car owner makes out a prima facie case of damage to his car while in the garage keeper\u2019s custody, it becomes the duty of the garage keeper to rebut the prima facie case by showing that he used due care as bailee.\u201d Bee, also, an extended annotation entitled \u2018 'Liability for loss or damage to automobile left in parking lot,\u201d 131 A. L. R., pp. 1175-3205.\nThe principles of law announced in Hornor Transfer Company v. Abrams, 150 Ark. 8, 233 S. W. 825, a bailment case, apply with equal force here. There it was held: (Headnote 1) \u201cA bailee of goods for hire is not absolutely liable for their loss, but only for their negligent loss,\u201d but that the burden is on the bailee for hire who has been placed in exclusive possession of the property, as here, to explain the loss thereof before the bailor could be put upon proof as to negligence.\nNo error appearing, the judgment is affirmed.",
        "type": "majority",
        "author": "Holt, J."
      }
    ],
    "attorneys": [
      "Linwoocl L. Brichhouse and Paul L. Barnard, for appellant.",
      "Wright, Harrison, Lindsey & Upton, for appellee."
    ],
    "corrections": "",
    "head_matter": "National Garages, Inc., v. Barry.\n4-9228\n232 S. W. 2d 655\nOpinion delivered June 12, 1950.\nRehearing denied October 9, 1950.\nLinwoocl L. Brichhouse and Paul L. Barnard, for appellant.\nWright, Harrison, Lindsey & Upton, for appellee."
  },
  "file_name": "0593-01",
  "first_page_order": 617,
  "last_page_order": 620
}