Opinion
36840.
DECIDED SEPTEMBER 16, 1957.
Bailment; automobile stolen from parking lot. Before Judge Henson. Fulton Civil Court. June 27, 1957.
William F. Woods, for plaintiff in error.
Walden D'Antignac, contra.
1. The evidence was sufficient to show that the bailee used ordinary care for the safekeeping and return of the automobile in compliance with Code § 12-403.
2. The trial judge covered all points developed by the evidence and the pleadings. No necessary charge was omitted.
DECIDED SEPTEMBER 16, 1957.
Dr. H. M. Holmes brought suit against John Harden, d/b/a Harden Service Station, in the Civil Court of Fulton County, for $430 alleging certain damage sustained by him as a result of alleged negligence on the part of the defendant. The defendant filed a demurrer and an answer to the petition. The plaintiff amended in compliance with the requirements of the demurrer, and the demurrer was never renewed later nor were any new demurrers filed. The petition alleged substantially that the defendant on the date in question operated a parking lot and that the plaintiff and others were invited to park automobiles for a definite charge; that on the date in question the plaintiff parked his automobile, paid the required charge and thus the relationship of bailor and bailee was created; that when the plaintiff returned to claim his automobile, the defendant did not produce it and it was later discovered that the plaintiff's automobile had been stolen from the parking lot. Specific acts of negligence were alleged. The reasonable market value of the automobile before and after the property was stolen and involved in an accident was set forth as well as the value of the reasonable rental and hire of the said automobile during the time it was out of the plaintiff's possession.
The defendant in his answer admitted jurisdiction; admitted that he owned and operated the parking lot and that he received automobiles as a bailee for hire. The defendant admitted receiving the plaintiff's automobile on the day in question and that the defendant was unable to return the automobile because the automobile had been stolen. The defendant denied the specific acts of negligence as well as the market value of the automobile before and after the accident.
The jury returned a verdict for the defendant. The plaintiff filed a motion for new trial on the statutory grounds and later amended by adding 7 special grounds. The motion was denied and it is on this ruling that the case is here for review.
The evidence shows substantially that the plaintiff left his automobile with the defendant and paid a flat sum of $3 per month for certain parking privileges; that some trouble developed about getting his automobile rapidly when needed and the plaintiff gave specific instructions to the defendant to leave the automobile unlocked and the keys in the switch. That evidence is more clearly shown by the plaintiff's testimony on cross-examination as follows: "Q. I believe on the day the car was lost or stolen, you didn't give any specific instructions? A. Not on that day. It was just a routine matter. Q. Some considerable time prior to the loss of your car you had come in several times and the boy had the key in his pocket, didn't he? A. Yes, sir. Q. It inconvenienced you in waiting for him? A. Yes, sir. Q. Therefore, did you not instruct the defendant, John Harden, that you wanted him to leave the key in the car so you would not be inconvenienced, as you had been before? A. Yes, sir, I do remember saying that. Q. That was a year or two before this loss? A. That's right. Q. Then you would park it yourself and leave the car? A. Yes, sir. Q. Sometimes you would park inside the lot or filling station and sometimes out in front? A. That's right. Q. Then, when you would go there there were many cars and your car was parked on the inside of many cars? A. That's right. Q. After you had had considerable trouble in that respect did you not tell John Harden that thereafter you would park your car out in front? A. Not necessarily on the street, but to put it in front of these parked cars, so they would not have to move three or four cars to get my car out. So far as the location was concerned, that was his business where he wanted to park it. I didn't tell him how to conduct his business. Q. You told him to put it in a place where you would not have any trouble getting it? A. That's right, not too much trouble. Q. You told him you wanted him to leave the keys in the switch? A. I may have said that, but I didn't mean for him to put it on the street and leave it there unless it was well attended. He had plenty of attendants. They could move it anywhere. That was his business. So far as leaving the car on the street without proper protection, I couldn't have mentioned anything like that, because the car cost too much money. Q. You told him you wanted it parked in a place where he would not have to move three or four cars? A. That's right."
The defendant testified in part as follows: "Q. What did he tell you thereafter with reference to how the car should be parked and where? A. In the first place, it is a service station or filling station, and not a parking lot. Doctors go in and out a lot. We have a $3 monthly service charge. When they come in at eleven o'clock or twelve o'clock we take the car and park it. When they come in and it is not convenient for them to get it out we get it out for them. When they come back in the evening, if there is no place to park they stop the car and one of the attendants takes the car and parks it. That is too much service for the money. It is unreasonable. It is just something to help out on the expenses of the customers. Dr. Holmes would come out at night on calls. We keep three men there at night. There is a yellow curbing rule after four o'clock. You can park two cars there. There were two cars parked there on this night. When Dr. Holmes came in that night we parked it right where we took it. We parked it right in the street by the curb behind another doctor's car. I left at eight o'clock. I told them to look after all of these cars. Dr. Holmes came in and said, `Do you have room for my car?' I said, `Yes, but you will have to pay a $3 service charge, because it is too expensive to have a man running around for nothing.' That was in the beginning. We kept the car a long time. Then by some mistake the boy had the key in his pocket. Dr. Holmes came in and the boy was gone out on a service call. The next morning when Dr. Holmes came in I apologized to him. He said, `Hereafter I will leave the key in the car. Be very cautious with it.' I said, `We will be very careful with it.' I said, `At four or five o'clock, when you come in, suppose we park it at a better spot, where you won't have to be delayed.' He said, `All right.' Several times he parked it in front of the filling station. When I left this night I said, `We are leaving it so that when you come in it will be there.' That was the place where it had been parked for at least two years at night when Dr. Holmes came in with it. Dr. Holmes would come back at eight or nine o'clock and get out of the car with the key in it. If he had told me to take the key out I would have taken it out."
The evidence shows that it had been the custom for many months to park the automobile in the manner in which it was parked on the date it was stolen.
1. The automobile was placed in the hands of the defendant by the plaintiff and carried the relationship of bailor and bailee. Ordinary care was required of the bailee. The evidence shows that the bailor left the automobile with the bailee and gave specific instructions to the bailee as to the place and manner of parking the automobile, which instructions had been followed for many months with the full knowledge of the bailor. The automobile was left unlocked with the key in the switch in front of other automobiles, thus placing the automobile in front of the filling station in a place tempting to thieves, and this was done under the specific instructions of the bailor, as shown by the evidence and the pleadings. Under these circumstances there was nothing shown which would indicate that the bailee was guilty of less than ordinary care for the automobile. The specific evidence on this point is shown hereinabove. The general grounds are not meritorious.
2. Special ground 1 assigns error on the following excerpt from the charge of the court: "Now, then, within the time permitted by law, the defendant, after admitting that he did receive the automobile under arrangements wherein it was to be parked and kept, denies that he was guilty of negligence and contends that he exercised ordinary care in the keeping of the automobile."
The plaintiff contends that the part of the charge, "after admitting that he did receive the automobile under arrangements wherein it was to be parked and kept," is an incorrect statement of the contentions of the defendant and further contends that said quoted charge was erroneous in that the reasonable meaning and effect was to infer that there was a mere "arrangement" whereby the plaintiff could park his automobile on the property of the defendant.
We construe this charge to show the contentions of the parties in relation to the pleadings and evidence. The court did this in a fair manner and it is our opinion that such was not prejudicial and harmful to the plaintiff and could not have misled the jury. This assignment of error is not meritorious.
3. Special ground 2 assigns error because it is alleged that the court erred in charging the jury as follows: "The burden of proof is upon the plaintiff to sustain his contentions by a preponderance of the evidence, the preponderance of evidence being that superior weight of the evidence which, while not enough to wholly free your minds from a reasonable doubt, should be sufficient to incline the minds of reasonable persons to one side of the issue rather than to the other. In order for the plaintiff to recover it is not necessary that he establish each and every allegation of negligence. It is necessary that he establish some one of them. He would not be entitled to recover on any act of negligence not specifically pleaded." It should be noted in this respect that the court charged further as follows: "The question of whether the defendant did exercise ordinary care in protecting the property bailed is a question for you to determine. The burden of proof is upon the defendant to sustain his contention that he did exercise ordinary care. The rule is as I have previously charged you with respect to the burden of proof upon the plaintiff to sustain his contentions. The same rule would apply. In order to defeat the plaintiff's action the burden of proof is on the defendant to show that he did exercise ordinary care. Ordinary care is that care and diligence which a prudent person would exercise under the same or similar circumstances. The lack of such care is ordinary negligence." When we consider the charge of the court as a whole, which must be done, the excerpt of which complaint is made shows no reversible error. Richter Bros. v. Atlantic Co., 59 Ga. App. 137 ( 200 S.E. 462) was predicated on pleadings and facts entirely different from those of the instant case. This is likewise the situation in Hawkins v. Davie, 136 Ga. 550 ( 71 S.E. 873) and Walker Electrical Co. v. Sullivan, 79 Ga. App. 13 ( 52 S.E.2d 477). Goodyear Clearwater Mills v. Wheeler, 77 Ga. App. 570 ( 49 S.E.2d 184) and Elliott v. Levy, 77 Ga. App. 562 ( 49 S.E.2d 179).
4. Special ground 3 assigns error on the failure to charge the provisions of Code § 12-104 regarding burden of proof. The court charged that the burden of proof is on the plaintiff to sustain his contentions by a preponderance of the evidence, and defined preponderance of evidence. It was charged that each and every act of negligence need not be proved, and that the burden of proof is on the defendant to sustain the contentions that ordinary care was used under the facts and circumstances of the case at bar. The court defined ordinary care and bailments. It is our opinion that the court properly charged on the subject matter of this special ground. It follows that there is no merit in this contention.
5. Special ground 4 assigns error because the court charged as follows: "In contracts for bailment the law defines the care and diligence required of the bailee, or the person taking the property under contract of bailment. That definition is as follows: `All bailees are required to exercise care and diligence in protecting and keeping safely the thing bailed.'"
The plaintiff contends that this excerpt was not applicable to the facts, was an incorrect statement of the law relative to the instant case, was highly prejudicial, harmful and was confusing and misleading to the jury. It is our opinion that the excerpt is a correct principle of law and was applicable to the evidence and the pleadings in the instant case. This special ground is not meritorious.
6. Special ground 5 assigns error in that it is alleged that the court erred in failing to charge the provisions of Code § 12-403, which section reads as follows: "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 safekeeping and return of the automobile." As we have stated hereinabove, the court charged on the care required under the relationship of bailor and bailee. When we consider the charge as a whole, this assignment of error is not meritorious.
7. Special ground 6 assigns error because it is alleged that the court erred in giving the following excerpt in charge to the jury: "Now, if you find from the evidence that this defendant, in response to specific instructions from the plaintiff, disposed of his car in such manner as might occasion a loss, then the defendant could not be held liable, if you find that the loss was the result of such instructions and a compliance therewith on the part of the defendant." The pleadings and the evidence show that this excerpt was adjusted thereto. This special ground shows no reversible error.
8. Special ground 7 assigns error on the following excerpt from the charge of the court: "The court has permitted to go before you evidence as to the extent of loss. That necessarily is opinion evidence. The law makes this distinction between opinion evidence, sometimes referred to as expert testimony, and evidence directed to a substantive fact. The jury may not disregard the evidence of a witness directed to a substantive fact, unless that witness be impeached in some manner provided by law or disputed by some other evidence.
"The rule is that, upon the introduction of opinion evidence or expert testimony, the jury can believe opinion evidence or expert testimony in part or in whole or reject it in favor of other evidence. They can give it such weight as they think it ought to have. They can disregard it and substitute their own knowledge and experience. That is for the reason that what might constitute the value of the loss of use or what the diminution in value might be is, of necessity, based upon the opinion of witnesses." The principle of law involved in this excerpt is correct and could not have resulted in harm to the plaintiff, under the evidence and the pleadings. This ground is not meritorious.
The evidence amply supported the verdict. The special grounds are not meritorious. The trial judge committed no reversible error in the charge or failure to charge.
Judgment affirmed. Townsend and Carlisle, JJ., concur.