14 S.E.2d 139 | Ga. Ct. App. | 1941
Lead Opinion
1. The plea to the jurisdiction was properly stricken.
2. The overruling of the demurrers to the petition was not error.
3. The evidence failed to show that the relationship of bailor and bailee existed between the parties; and the judgment in favor of the plaintiff (rendered without the intervention of a jury) was contrary to law and the evidence.
1. The plea to the jurisdiction was based on the alleged ground that the court did not have jurisdiction of the subject-matter of the suit, for the reason that the plaintiff was suing for "personal damages." The plea was properly stricken. The court has jurisdiction in actions seeking recovery of damages caused by injury to personal property, but it has no jurisdiction of suits based upon injuries to the person or to a person's reputation.
2, 3. The controlling question is whether the relationship of bailor and bailee existed between the parties. It is well settled that the relationship of bailor and bailee does not exist unless there is such a delivery of the property that the alleged bailee acquires an independent and temporarily exclusive
possession thereof, and unless there is an actual change of legal as well as physical possession of the property from the bailor to the bailee, "by virtue of which the bailee is entitled to maintain an action of trover or trespass against one who interferes with his possession, or who negligently destroys the property while in his custody." Atlantic Coast Line R. Co. v.Baker,
In several cases from other States, where the facts were almost identical with those of this case, the appellate courts held that the relationship of bailor and bailee did not exist between the parties. Thompson v.
Mobile Light c. Co.,
Judgment reversed. MacIntyre, J., concurs specially.Gardner, J., dissents.
Concurrence Opinion
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,
Dissenting Opinion
Ford brought an action to recover of the Southeastern Fair Association damages arising from the theft of his automobile from the parking grounds of the defendant, and alleged as the cause of the loss certain acts of negligence of the defendant. The defendant filed its plea to the jurisdiction, and general and special demurrers to the petition, which plea and demurrers the court overruled. To these judgments the defendant filed exceptions pendente lite. The trial resulted in a judgment for the plaintiff, and the defendant filed its motion for new trial on the general grounds, and its amendment setting up special grounds, which motion as amended the court overruled. Exceptions are to the orders of the court overruling the plea, the demurrers, and the motion for new trial.
1. I specially concur in the ruling that under the allegations of the petition the civil court of Fulton County had jurisdiction. "Civil Court of Fulton County" is merely a new name for the Municipal Court of Atlanta (Ga. L. 1939, p. 449), and the act creating the municipal court (Ga. L. 1913, pp. 145, 158, § 26) provides that it shall have "jurisdiction to try and dispose of all civil cases [save where exclusive jurisdiction rests with other courts] of whatever nature, except injuries to the person or the reputation." The injuries alleged as the basis of recovery do not fall within the classification excepted.
2. I specially concur with the majority in the opinion that the *876 court did not err in overruling the demurrers, but for the reasons hereinafter assigned. The petition alleged substantially, that the plaintiff and his wife visited the fair of the defendant; that the plaintiff paid as entrance fees fifty cents each for himself and his wife, and twenty-five cents "for the storing and parking of his automobile for safe-keeping while he and his wife were visiting the fair exhibits;" that he parked his automobile "at a place inside the fair grounds where he was directed to park same by the defendant;" that "he locked his automobile before leaving same;" that when he later returned (after such time as had been required to visit the exhibits and otherwise attend the fair) to the place "where he had parked his automobile upon the direction of defendant, . . his automobile had been stolen;" and that he notified the defendant that his automobile had been stolen. The negligence alleged was that the defendant failed to enclose properly the grounds, and did not provide the proper guards or watchmen to prevent the theft of his car; and that due to such negligence the defendant failed in the exercise of ordinary care to protect his automobile and prevent it from being taken from its possession, when it had led the plaintiff to believe, under its acts of taking possession of the car and directing its parking and placement, that the car would be safe from theft. A fuller exposition of the petition is unnecessary.
The demurrers raise but one material issue, that of bailment. I think this question is controlled in principle by the rulings in Dilberto v. Harris,
The court held in Dilberto v. Harris, supra: "The proprietor of a barber-shop kept for public patronage is liable to a customer for the value of his hat, which was deposited on a hatrack, in the shop and which, while the customer was being shaved, disappeared from the shop and was thus lost, such proprietor being, under these facts, a bailee for hire as to the customer's hat." Though the evidence was conflicting as to whether the plaintiff or the defendant's porter placed the hat on the hatrack, it was certain that the hat was placed on the rack in the barber-shop where all customers customarily placed their hats, and that the plaintiff then was shaved. It must be assumed that the court was fully cognizant of the law of bailments for hire, that the possession of the property must be in the independent and exclusive possession of the alleged bailee. It is clear that the effect of the decision was that while the hat was on the rack along with hats of other customers, and while the plaintiff was being shaved, the hat during that period of time was in the independent and exclusive possession of the barber, notwithstanding the hat may have been but a few feet distant from the plaintiff, *878 and notwithstanding there was no contractual inhibition to the plaintiff recovering his hat at will, unaided, from the rack after the shave. Under these principles it appears that the possession of the car in the instant case was that of a bailee for hire. While the defendant's agents did not take manual control of the car and park it, the defendant nevertheless absolutely controlled and directed the parking of it in its "shop" or grounds; and, in analogy to the period of time the customer was "away" being shaved, the plaintiff was "away" during the time indicated, seeing the fair. It was not indicated as important (the decision being silent in this respect) that to perfect the bailment for hire it had been necessary that the proprietor alone recover the hat from the rack for his customer, but that if the customer himself took it from the rack he thereby defeated the bailment. The fact that the plaintiff in the instant case had the right to recover his car from its location where parked, without first getting permission instanter from the defendant or without first taking manual delivery from the defendant. I think immaterial to defeat the bailment for hire. While a bailment for hire may be the more readily evidenced when the proprietor of a parking lot issues a ticket and retains a stub, and thereafter requires the presentation of the ticket before his manual surrender of the possession of the car to the customer, such requirement does not alone determine the existence of the bailment. A bailment may exist without such delivery. Keene v.Lumbermen's Mutual Insurance Co., supra. I think such requirement, when used, goes more to the proper execution of the bailment than necessarily to its existence.
Moreover, the instant case on its facts is more strongly that of a bailment for hire than was Dilberto
v. Harris on its facts. In the Dilberto case no fee, as such, was paid for the deposit of the hat. In the instant case a fee of twenty-five cents was paid for entrance of the car for parking. The necessity for depositing the hat (unless the customer came bareheaded) was interrelated to the procuring of the shave, in that such "accommodation" went to the promotion of the business. I think that likewise it was in the financial interest of the defendant, in promoting attendance on its fair, to provide (except as to those who walked) a parking space for the automobiles of its customers, notwithstanding it charged extra therefor. The converse of independence and exclusiveness *879
of possession of the property in the alleged bailee would be seen had the plaintiff been permitted to drive his car at will over the fair grounds, from which, parked or moving, he could have better seen the fair. No such permission obtained; the only permission which it may be inferred from the allegations the plaintiff had was (1) to park the car where directed, and (2) to drive it directly out when leaving the grounds. The fact that the car was left locked by the plaintiff would not of itself determine or defeat the existence of the bailment. Independence and exclusiveness of possession is not necessarily dependent on the right of the bailee freely to move the property about. A bailment may be of that which is fixed when placed in the possession of the alleged bailee, as well as that which is readily movable. There is no conflict in these rulings with those in Wall v. State,
3. I dissent from the ruling in the majority opinion that the judgment was not authorized by the evidence. In addition to substantiating the allegations, the evidence more fully showed that a certain portion of the fair ground was given over to the parking of cars, into which the plaintiff first entered by buying a ticket for the car, then driving forward about thirty feet, when his ticket was collected and the employees of the defendant started directing and controlling the movements of the plaintiff to the point of parking; and that upon leaving the car the plaintiff bought tickets for himself and his wife and entered the fair ground proper, which was separated by a fence from the parking section.
Addendum
Judgment adhered to. MacIntyre, J., concurs. Gardner, J.,dissents.
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