22 Ga. App. 193 | Ga. Ct. App. | 1918
1. A contract founded upon a consideration,^whereby goods are intrusted to another for the execution of a special purpose, after which they are to be returned to the one making -the delivery, constitutes the person receiving them a bailee for hire. Civil Code (1910), § 3467; Bates v. Bigby, 123 Ga. 727 (51 S. E. 717).
2. “A tort is a legal wrong committed upon the person or property, independent of contract;” it may, however, arise from “the violation of some private obligation by which' damage accrues to the individual.”
3. A bailee for hire is chargeable with the duty of ordinary diligence, and where such a bailee is sued for the value of property, the loss 5f which it is alleged was occasioned by his negligent failure to .perform a duty expressly imposed by the terms of the bailment, and the loss of the property is made to appear, the burden is upon him to show that such degree of care has been exercised. Civil Code (1910), § 3469. But, since the petition in this, case absolves the defenda’nt from any lack of diligence in protecting and keeping safely the goods bailed, ’ except as to the specific complaint setting up the total failure on his part to perform the special duty imposed by the contract, and since the 'neglect of this duty could not-naturally and in the usual course of things occasion the damage complained of, it was not error on the part of the trial judge to dismiss the suit as failing to set forth a cause of. action. Civil Code (1910), § 4395; Montgomery v. Alexander Lumber Co., 140 Ga. 51.(3) (78 S. E. 413).
Judgment affirmed.