Trax-Fax, Inc. v. Little , 175 Ga. App. 727 ( 1985 )

Deen, Presiding Judge.

Buddy Hobba, the president of Trax-Fax, Inc., left his 1978 Ford flat-bed truck at appellee Little’s service station for repairs. As the service station was closed, and consistent with the customary practice between the parties, Hobba locked his truck and slid the keys under the door of the station office. A week later Hobba went by the station to get some tools from the truck and discovered it was missing. Little thought Hobba had picked up his truck a day or two earlier and had not told him. It was never recovered and Hobba brought an action to recover the value of the vehicle contending appellee breached his duty as a bailee by failing to return the truck. A bench trial was held and the court found the appellee exercised the ordinary care required of him as a bailee. On appeal, Hobba contends the bailee failed to sustain his burden of proving he exercised ordinary diligence in protecting the bailed property and that the court ignored undisputed facts of record which show the bailee did not exercise ordinary care. Held:

It can be argued that a bailment never arose in this case because the bailee did not have exclusive possession of the truck as Hobba admitted he could have retrieved it at will without Little’s knowledge. Mossie v. Pilgrim Self-Svs. Storage, 150 Ga. App. 715 (258 SE2d 548) (1979). The court below, however, found a bailment and held that the bailee exercised ordinary care to protect the bailed property. The bailee testified that after he received the vehicle he kept it locked and that the keys were placed inside a locked building. These steps were identical with those utilized by Hobba when he delivered the truck, and appellant obviously considered them sufficient protection for his property at that time. At trial, Hobba claims the bailee should have taken the precaution of disabling the vehicle in order to protect it. The evidence showed that the station was lighted at night, located on a heavily traveled road, and that while there had been several minor thefts from the premises only one other vehicle had been stolen in the past five years. Applying the any evidence rule to the court’s decision, we find there was sufficient evidence to support the finding that the bailee had exercised ordinary care to protect the truck.

Decided September 3, 1985. William Morgan Akin, Warren Akin, Susan M. Lipscomb, for appellant. Jefferson L. Davis, Jr., for appellee.

Judgment affirmed.

Pope and Beasley, JJ., concur.