Elliott v. Levy

A petition — alleging that the plaintiff was a customer of a filling station and parking lot operated by the defendants, and that he delivered his automobile to the filling station to have oil and gas placed therein and parked in the usual place assigned to the plaintiff in the parking lot for which he paid $4 per month, and that the automobile was lost or stolen while in the possession of the defendants, at a time and place unknown to the plaintiff but known to the defendants, and was missing when called for by the plaintiff later in the day — stated a cause of action for the value of the automobile based on a bailor-bailee relationship, and the court erred in dismissing it on demurrer.

DECIDED JULY 13, 1948. REHEARING DENIED JULY 28, 1948. Dr. W. B. Elliott sued Sam E. Levy and Annie S. Levy, a partnership, for damages for the loss of his automobile while in the possession of the defendants as bailees for hire. He alleged that prior to September 13, 1947, he had parked his car with the defendants who operated a parking lot in the City of Atlanta, and had been assigned a space in the parking lot where his car would be regularly parked; that he was a customer of the defendants, who also operated a service station, and on September 13, 1947, he delivered his said car to the defendants at their service station, with the request that gas and oil be placed therein and that the defendants should park the car in the space assigned to the plaintiff in the said parking lot; that upon returning for his car it was missing and has not been found; that the defendants were bailees for hire, the plaintiff paying a monthly rental for the use of the space in the said parking lot, and that the loss (the alleged value of the car being $1748.03) the plaintiff sustained resulted from the carelessness and negligence of the defendants, and that the defendants did not exercise ordinary care for the protection and safekeeping of the car after they had been employed so to do; that by the exercise of ordinary care on the part of the defendants the said car would not have been lost or stolen. He prayed for judgment for the value of the car.

The defendants filed general and special demurrers to the petition. One ground of demurrer was that the petition failed to set forth whether the said car was missing from the parking lot, and the space assigned to plaintiff, or was missing from the place occupied by the defendants' service station, and because the petition failed to show whether the car was stolen or lost while in the possession of the defendants in said service station, or later after having been placed in the parking lot. Other grounds of demurrer were that the petition did not show what acts of negligence and carelessness of the defendants resulted in the loss of said car, and did not show the degree of care the defendants were required to exercise, nor in what manner the defendants were negligent.

In response to the demurrers the plaintiff amended by alleging that about 8:30 a. m. on the date in question, after leaving his car with the defendants to be gassed and oiled, as was his usual custom, and placed in the parking lot, for which he paid $4 per month, he left the defendants' place of business and does not know what disposition was made of said car; that when he returned about noon on the same day he was given the keys to the car, but it was not in the parking lot and could not be found; that he does not know whether his car was allowed to remain at the defendants' main place of business or was taken to the parking lot, but such fact is well known to the defendants; that he does not know whether said car was taken while at the service station or where it was usually parked, but that it was at all times in the possession of the defendants as bailees for hire. The plaintiff also enlarged upon the allegations of negligence charged to the defendants.

The defendants renewed their general and special demurrers to the petition as amended, and moved to strike it upon the ground that it did not set forth a cause of action, and failed to show whether the plaintiff's car was taken from the possession of the defendants or from the possession of the plaintiff, and failed to show a bailor — bailee relationship between the plaintiff and the defendants. Thereupon the court sustained the demurrers and dismissed the petition on the ground that it failed to state a cause of action. The plaintiff excepted to that ruling.

"A bailment is a delivery of goods or property for the execution of a special object, beneficial either to the bailor or bailee or both, and upon a contract, express or implied, to carry out this object and dispose of the property in conformity with the purpose of the trust." Code, § 12-101. "All bailees are required to exercise care and diligence in protecting and keeping safely the thing bailed. Different degrees of diligence are required, according to the nature of the bailment." § 12-103. Where the object of the bailment is beneficial to both parties the degree of diligence required of the bailee is ordinary care.Merchants National Bank v. Guilmartin, 88 Ga. 797, 799 (15 S.E. 831, 17 L.R.A. 322); Renfroe v. Fouche, 26 Ga. App. 340 (106 S.E. 303). "In all cases of bailment after proof of loss, the burden of proof is on the bailee to show proper diligence." Code, § 12-104. It is reversible error for the trial judge to relieve the defendant of the duty imposed by this section of the Code, and to so charge the jury as to put the burden of showing negligence on the plaintiff. Richter Bros. v. Atlantic Co., 59 Ga. App. 137 (200 S.E. 462). "Loss of property after its delivery to another authorizes an inference that the loss was occasioned by negligence of the person receiving it." Atlantic Coast Line R.Co. v. Barksdale, 32 Ga. App. 643 (1) (124 S.E. 362); "The relation of the owner of an automobile and the owner of the garage in which the automobile is stored is that of bailor and bailee. Such bailee is bound to use ordinary care for the safe-keeping and return of the automobile." Code, § 12-403.

We think that the petition of the plaintiff clearly alleged a state of facts that made the relationship between the parties that of bailor and bailees. The defendants as bailees accepted delivery of the car and had exclusive temporary possession thereof for the purposes of the bailment. As was said by Judge Lamar in Atlantic Coast Line R. Co. v. Baker, 118 Ga. 809,810 (45 S.E. 673), "Delivery under which the bailee acquires an independent and temporary exclusive possession is essential to the contract of bailment." The defendants had an independent and exclusive possession of the car and its keys, and when the plaintiff called for the car it was missing and could not be found. In Dilberto v. Harris, 95 Ga. 571 (23 S.E. 112), it was held that the proprietor of a barbershop is a bailee for hire as to a customer's hat placed on a hatrack in the shop while the customer is being shaved. A like ruling was made in Walpert v.Bohan, 126 Ga. 532 (55 S.E. 181, 6 L.R.A. (N.S.) 828, 115 Am. St. R. 114, 8 Ann. Cas. 89), holding that the proprietor of a bathing establishment who receives the apparel or valuables of a bather for safe-keeping while the customer is bathing, and receives compensation for this and for the use of the bathroom, is a bailee for hire. This court held in Parker Motor Co. v.Spiegal, 33 Ga. App. 795 (127 S.E. 797), that a motor company was a bailee for hire as to an automobile left in its custody for repairs; and in Keene v. Lumbermen's MutualInsurance Co., 60 Ga. App. 864, 867 (5 S.E.2d 379), that the relationship between the operator of a parking lot and a customer using the lot, under the facts of that case, was a bailment.

Without restating the facts and circumstances set out in the petition of the plaintiff in this case, we think it is plain that there was a bailment of the plaintiff's car, and that the car was lost or stolen in a manner unknown to the plaintiff, but known by the defendants, and that the petition stated a cause of action when it alleged the bailment and the loss thereunder. We do not think it was necessary for the plaintiff to go further and do an impossible thing by alleging the exact time, place, manner or circumstances under which the car was lost or stolen. Allegations showing a bailment and a loss of the property cast the burden on the bailee of showing proper diligence with respect to the subject-matter of the bailment under the Code, § 12-104. The ruling in Southeastern Fair Assn. v. Ford, 64 Ga. App. 871 (14 S.E.2d 139), is not in conflict with what we now hold because the facts in that case are substantially different from the facts alleged in this case.

The fact that the plaintiff alleged in response to the demurrer that he did not know what disposition was made of the car after he delivered it to the defendants, that is, whether it was lost or stolen from the service station or from the parking lot, both of which were operated by and under the control of the defendants, did not make the allegations alternative so as to subject the petition to a general demurrer. Alternative pleadings must be disjunctive or contradictory to come under the rules applied in Doyal v. Russell, 183 Ga. 518 (189 S.E. 32), and Groover v. Savannah Bank Trust Co., 186 Ga. 476 (198 S.E. 217). The petition here is not disjunctive or contradictory. It alleged delivery to and complete and exclusive custody and possession of the car by the defendants for the purposes of the bailment, and loss of the property by the defendants. This stated a prima facie case and the court erred in dismissing the petition.

This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. Laws 1945, p. 232).

Judgment reversed. Sutton, C. J., and Gardner and Townsend,JJ., concur. MacIntyre, P. J., concurs specially. Felton, J.,dissents.