Southeastern Fair Asso. v. Ford

I concur in the view that the plea to the jurisdiction was properly stricken, that the demurrers to the petition as amended were properly overruled, that the evidence failed to show a bailment of the automobile, and that the judgment was contrary to the evidence. However, I base the last two conclusions squarely upon the generally accepted rules of bailment stated in the Code, § 12-101, and Atlantic Coast LineR. Co. v. Baker, 118 Ga. 809, quoted in the majority opinion, and the further rule stated in Blosser Co. v.Doonan, 8 Ga. App. 285 (2) (68 S.E. 1074), that the bailee "must assent to the bailment, either expressly or impliedly, before the relationship of bailor and bailee will be established, with its consequent liabilities." I do not think that either the Wall case or the Dilberto case is controlling under the facts of the instant case. The Wall case is distinguishable from the instant case; for in that case the absence of a bailment was based on the theory that a servant is not the bailee of the property of his employer (or property of a third person left in the possession of the employer as a bailee thereof), such property being in the servant's "mere custody" as distinguished from such possession as would constitute him the bailee thereof. Henley v. State,59 Ga. App. 595, 599 (2 S.E.2d 139); O'Neal v.State, 10 Ga. App. 474 (73 S.E. 696); Jackson v.State, 21 Ga. App. 146 (94 S.E. 55). In the instant case, I think the absence of a bailment should be based on the theory that the evidence did not authorize a finding that the defendant ever had such exclusive possession and control of the property as would constitute him the bailee thereof. I think the holding in the Dilberto case that the proprietor of the barbershop was a bailee of his customer's hat was based on the theory that furnishing the hatrack for customers' hats, and exercising ordinary care to protect them while customers were being shaved, was an integral part of the proprietor's business. It might be noted that in obtaining a shave in the ordinary barber-shop it is necessary (or at least customary) for the person obtaining a shave to remove his hat. This being so, when the proprietor of a barber-shop furnishes a hatrack there is at least an implied invitation to customers to place their hats thereon, and when a customer does so, it seems to me that there then arises an implied agreement (a bailment) on the part of the proprietor to use ordinary care and diligence in protecting the hat. However, under the evidence in the instant case, it was not an integral part of the defendant's business to furnish the plaintiff a place to park his car; and for this reason I think the Dilberto case is not applicable.