Bashinski v. Williams Co.

Broyles, J.

1. There was evidence submitted which, would have authorized a finding that the bailment was one for hire. The court therefore erred in assuming as a matter of law that the bailment was a gratuitous one, and in so charging the jury, and in instructing them that the defendant bailee would be liable for gross negligence only. The jury should have been instructed that if they found the bailment to be for hire, the burden of proof would be upon the defendant company to show, by a preponderance of the evidence, that it had exercised ordinary care and diligence.

2. The error discussed above does not, however, require a new trial of the case; for while ordinarily it would have been a question for the jury to detennine whether the defendant company had successfully carried the burden of showing, by a preponderance of the evidence, that it was not guilty of ordinary neglect, yet as all of the evidence submitted on this issue demanded a finding that the defendant had used ordinary care and diligence, the verdict returned in favor of the defendant was the only legal finding possible, and will therefore be upheld, notwithstanding the error in the charge.

Decided October 4, 1916.

Trover; from city court of Macon — Judge Hodges. February 4, 1916.

Sam B. Hunter, Feagin & Hancoclc, for plaintiff. Hall & Grice, for defendant.

Judgment affirmed.

Hodges, J., disqualified.