29 Ga. App. 522 | Ga. Ct. App. | 1923
1. Whether or not a defendant bailee, in an action of tort brought by the owner to recover the value of property stolen while in the possession of the defendant, on account of an alleged lack of ordinary care for its protection, would be entitled to have the full panel of jurors placed upon voir dire with reference to their being officers, stockholders, or employees of an insurance company, on the theory that before the suit it had paid to the .plaintiff the amount of a theft policy covering the property, and had thus become subrogated to the plaintiff’s right of recovery, the refusal by the court to propound such questions will not constitute prejudicial error in the ..absence of any proof that any juror so disqualified was in fact placed upon the panel. Carter v. State, 106 Ga. 372 (6) (32 S. E. 345, 71 Am. St. R. 262); McCarty v. State, 23 Ga. App. 79 (2) (97 S. E. 446). In the instant case it furthermore appears from their affidavits that none of the jurors actually trying the case was thus disqualified.
2. “ A chose in action arising from a tort is assignable where it involves, directly or indirectly, a right of property.” Where there has been a complete legal assignment of such* a chose in action, “ the assignee may institute and maintain an action against the defendant tort-feasor for the entire damage sustained,” and the assignor “ is not a proper party plaintiff to the suit.” Sullivan v. Curling, 149 Ga. 96 (1), 99 (99 S. E. 533, 5 A. L. R. 124). But where there has been a loss or destruction of property partly covered by a policy of insurance, and the insurance company has paid to the insured the amount of the policy, and by this
3. The court in the. instant suit (for the recovery of the value of an automobile) charged the jury: “The plaintiff was bound, on his part, to exercise ordinary care in respect to the car. If it had a lock on it and he failed, if he did fail, to lock it, you may consider that in estimating plaintiff’s care. Consider whether it was the duty of the plaintiff to lock his car, whether locking it would have prevented defendant from moving it, whether the defendant took possession of it unlocked, whether defendant had any duty in respect to the locking of the car, all these matters may be considered in connection with the ordinary care each party was bound to exercise.” Exception is taken to this instruction as amounting to an expression of opinion that the locking of
4. Where a bailment exists, “ on proof of loss, the burden is upon the bailee to show that he has exercised the proper degree of care and diligence.” Civil Code (1910), §§ 3469, 3470, 3503; Renfroe v. Fouché, supra. While the evidence was conflicting, the jury were authorized to find that at the time of the theft of the car by an unknown person it was in the defendant’s possession as a bailee, and that the defendant failed to exercise ordinary care in leaving it unprotected upon the street. The amount of the verdict for the plaintiff was not unauthorized, under some of the evidence presented; and for no reason assigned can the verdict and judgment be set aside.
Judgment affirmed.