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Click here for the full text of this decision FACTS:This case decides the question of whether the loss of valuables by theft from a locker being used by a member or guest of a gym, health club, wellness center, swimming pool, or similar facility creates a bailment, a landlord-tenant relationship and/or a warranty, express or implied. Sisters of Charity of the Incarnate Word, Houston, Texas d/b/a St. Elizabeth Hospital of Beaumont, appellant, the operator of a health and wellness center, appeals from an adverse judgment holding it liable for the theft loss of the appellee, Phil Meaux’s, expensive watch, jewelry and cash from the locker assigned to appellee while swimming at the center. A jury found that appellant failed to comply with a bailment contract, and/or a warranty contract, express or implied, with the appellee and the trial court rendered judgment for appellee in the amount of $19,500 plus interest and attorney’s fees. The jury found there was no negligence of either appellant or appellee. We reverse and render. Appellant contends there was no evidence: 1. of a bailment contract; or 2. of an express or implied warranty; and 3. the trial court erred in failing to render judgment for appellant that appellee take nothing. HOLDING:Reversed and rendered. The basic elements of a bailment are: 1. the delivery of personal property by one person to another in trust for a specific purpose; 2. acceptance of such delivery; 3. an express or implied contract that the trust will be carried out; and 4. an understanding under the terms of the contract that the property will be returned to the transferor or dealt with as the transferor directs. Yoakum Grain Inc. v. Energy Indus. Inc., 511 S.W.2d 95 (Tex. Civ. App – Corpus Christi 1974, no writ). A bailee has the duty to exercise ordinary care over the goods and is therefore “responsible” for the bailor’s goods. Marine Indem. Ins. Co. of America v. Lockwood Warehouse & Storage, 115 F.3d 282 (5th Cir. 1997). In contrast, a lease is a transfer of interest in and possession of property for a prescribed period of time in exchange for an agreed consideration called rent. The lessor has the duty of ordinary care in maintaining the premises it controls, but does not have a duty to exercise care regarding the lessee’s property stored on the premises. The lessor is therefore not “responsible” for the property of the lessee. As between the owner of premises and the owner of personal property left in a locker on the premises when exclusive possession thereof has not been delivered and control and dominion of the property is dependent in no degree upon the co-operation of the owner of the premises, a landlord and tenant relationship is created, not a bailment. Marsh v. American Locker Co., 72 A.2d 343 (N.J. Super. Ct. App. Div. 1950). Appellee claims the facts show an implied bailment agreement may be proved by direct or circumstantial evidence and it was not necessary that delivery and acceptance be formal. However the cases cited by appellee do not involve lockers used in situations as in this case where the owner of the premises (locker) has no knowledge of the extent of the value of the property stored in the lockers, and suggests in its rules that items of high personal or monetary value not be brought to the premises. Appellant could reasonably expect that only ordinary personal belongings be placed in the lockers, and would not have agreed to a violation of its rules by someone storing valuables of high personal or monetary value. The owners of the premises in the cases cited by appellee had the opportunity to see the property they were to safe keep, and/or make an assessment of whether to accept the property and the responsibility in such connection. Although some of the cases cited by appellant are from out-of-state jurisdictions, the court does not agree with appellee’s assertion that they are distinguishable and non-controlling. Such cases are factually in point and are not contrary to Texas regarding the law of bailment and landlord and tenant. There was no evidence of delivery and acceptance of appellee’s property by appellant. Appellant had no knowledge of what appellee placed in the locker but had the right to expect no belongings of a high monetary value would be placed in the locker contrary to its rules, and that it would not be liable for the loss of appellee’s property by theft. The court concludes there was no bailment agreement between appellant and appellee, and the use of the locker by appellee created a landlord-tenant relationship between the parties. The parties’ respective responsibilities and liability are governed by the rules of the Wellness Center and there is no presumption of negligence as ordinarily used in bailment cases. The appellant had no knowledge, and no semblance of custody, possession or control, and where there is no such delivery and relinquishment of exclusive possession, and its control and dominion over the appellee’s property is dependent in no degree upon the co-operation of appellant, and its access thereto is in no wise subject to its control, the appellee is a tenant or lessee of the locker upon the premises where appellee’s property was left. Cornelius v. Berinstein, 183 Misc. 685, 50 N.Y.S.2d 186 (N.Y. Sup. Ct. 1944). There was no evidence from which an informal, constructive or implied bailment could have been established or inferred. The trial court erred in overruling the appellant’s motions for directed verdict, and for judgment notwithstanding the verdict of the jury. There was no evidence of a bailment agreement. The errors probably caused the rendition of an improper judgment. The trial court erred in overruling appellant’s motion for directed verdict, and for judgment not withstanding the verdict. There was no evidence of an express warranty; and there is no such implied warranty in Texas. The errors probably caused the rendition of an improper judgment. OPINION:Amidei, J.; McKeithen, C.J., Burgess and Amidei, JJ.

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