Opinion
38399.
DECIDED SEPTEMBER 7, 1960.
Action for damages. Fulton Civil Court. Before Judge Camp. April 14, 1960.
Hamilton Lokey, Lokey Bowden, Glenn Frick, for plaintiff in error.
Poole, Pearce Hall, William F. Lozier, contra.
Where, as here, the evidence discloses a mutual benefit bailment, ordinary care is required of the defendant. In such case evidence must be shown that the bailee exercised ordinary care and the burden of proof is on the bailee to show that ordinary care was exercised.
DECIDED SEPTEMBER 7, 1960.
Thomas L. Jordan brought suit against Southern Aero, Inc., alleging damages to the plaintiff's automobile in the sum of $3,075. The case was tried before a judge without a jury resulting in a judgment for the plaintiff for $2,039 plus costs. A motion for a new trial based on the general grounds only was overruled by the trial court and it is to the overruling of this motion that the case is here for review.
The petition alleges that the plaintiff delivered his 1958 Oldsmobile to the defendant to store while the plaintiff made an airplane trip out of town; that at the time of delivery of the car, the car had a market value of $4,070; that the car was left with the defendant under a verbal contract between the plaintiff and the defendant "whereunder plaintiff kept a private airplane at the defendant's hangar . . . and the defendant kept the plaintiff's car while the plaintiff was using the airplane, the plaintiff paying the defendant the sum of $35 a month for the defendant's taking care of the plaintiff's airplane when the plaintiff was not using it and for taking care of the plaintiff's car when the plaintiff was using the plaintiff's airplane"; that when the plaintiff returned from the trip his car was damaged and had a market value of only $1,095; that the plaintiff's car had a fair rental value of not less than $10 a day for use in his work and that it would take not less than ten days to have repairs made on the car; that the damages done to the plaintiff's car while the car was in the care and custody of the defendant were due to the defendant's failure to take and exercise reasonable care of the plaintiff's automobile.
The defendant answered, denying all material allegations of the petition except jurisdiction.
The evidence shows substantially that the plaintiff brought the car in April, 1958, for $4,800; that the plaintiff had been storing his airplane with the defendant for a period between one and two years and had been paying the defendant $35 a month rental for the storage space. The plaintiff testified that for the $35 per month he was to receive from the defendant inside airplane storage space and general courtesies such as wiping the windshield, checking the oil, "and parking and storing the automobile on their premises while I was out of town"; that the plaintiff usually drove his car to the defendant's storage lot and that "if there was service or line men available, the car was parked by them, and the keys were kept at Southern Aero, most generally, in the same place the keys to my airplane were kept, which is on a board within the office of Southern Aero"; that there were other customers who had the same arrangement with the defendant; that on August 28, 1959, the plaintiff left Atlanta and flew to Baton Rouge, returning to Atlanta on August 30, 1959, at approximately 9 p. m.; that the plaintiff's car was not at the defendant's place of business and was seen by the plaintiff in a banged-up condition at Mitchell Motors three or four days later; that the plaintiff set the market value of the car as of August 28, 1959, at $4,100, and he testified that the wrecked vehicle brought $1,091 for salvage.
On cross-examination the plaintiff testified that he had only a verbal arrangement with the defendant; that his car was parked by the defendant's agents 90% of the time; that when the defendant parked the car the plaintiff didn't take the keys with him but left them inside the office by giving them to one of the attendants to hang on the key board so that if it became necessary for an employee to move the car for any reason, such as other traffic, the keys would be available; that the car keys were kept on the same rack where the airplane keys were kept when the airplane was parked there. The plaintiff further testified that he was positive that he did not park the car himself that night but that it was parked by an attendant.
Mr. W. M. Dodd, a salesman for Mitchell Motors, testified that he was familiar with the plaintiff's car and that on August 28, 1959, it had a market value of $3,130 and that after it was damaged it was worth only $1,091 as salvage, and that in his opinion this was the market value of the damaged car.
Mr. Delano Taylor, operating manager for the defendant, testified that he had worked for the defendant approximately four years; that storage services and repair facilities were furnished and that the defendant sold gas and oil to private airplane owners and operators; that the plaintiff owned a Bianca airplane originally, which was stored on the inside, but that the plaintiff later bought a Piper Apache and that it was stored on the outside on a tie-down line and that the defendant charged $15 per month for tie-down storage; that for a time the plaintiff had both airplanes stored with the defendant; that the storage plus the tie-down service amounted to $50 per month; that customers were permitted to park the cars on the premises but were not charged for this service; that the defendant preferred to have the car keys left in the possession of the defendant in case it was necessary to move the car. The witness testified further that neither the car nor the airplane keys were locked up. A photograph, allowed as an exhibit, shows the key to the car hanging on a peg on a board which could be reached by a person outside the office as well as inside the office.
Larry Smith, a high school boy 19 years of age, testified that he ran the office at night and that there was no one superior to him on duty at night; that he was on duty, along with another young fellow, on the night the plaintiff came in and left his car and went away in the airplane; that on this particular night Robert Paul McClung, 19 years of age, who worked for the defendant but was not on duty at that time, dropped by about 8:30; that McClung had access to the keys of the airplanes as well as the cars.
Robert Paul McClung testified that he was a junior in high school and worked for the defendant at certain times; that his time to work was from midnight until 8 in the morning; that he took the plaintiff's car from the defendant's parking lot, drove it away and wrecked it; that he took the car out about 7 or 7:30 p. m.; that he got the keys to the car off the board in the defendant's office and that, without telling anyone and when no one was looking, he drove the car off and wrecked it.
It is the contention of the defendant that the car was parked under a gratuitous bailment. The plaintiff contends that it was not a gratuitous bailment but was a mutual benefit bailment requiring ordinary care, a higher standard of care than is required of a gratuitous bailee. The defendant contends that the bailment was for the exclusive benefit of the bailor and that there was no benefit flowing to the defendant as a result of the parking of the plaintiff's car. The defendant also contends that the defendant was under no obligation to anticipate that the employee McClung would drive away and wreck the car and that it would be too heavy a responsibility to hold the defendant liable for acts which would be unusual and unlikely to happen or only remotely and slightly probable. In support of this contention the defendant cites Peggy Ann of Georgia, Inc. v. Scoggins, 86 Ga. App. 109, 116 ( 71 S.E.2d 89). This case is not on all fours with the case at bar and is not authority for the contention of the defendant that the case should be reversed. For the same reason Merchants Nat. Bank of Savannah v. Guilmartin, 88 Ga. 797 ( 15 S.E. 831, 17 L.R.A. 322) is not considered authority for reversal.
In modern business practices it has been found that free parking space is necessary in order to entice customers to shop in, for instance grocery stores and other places of business. It would seem that, if such facilities are not provided, customers would be lost to the place of business, and cars left in such enclosure would be of benefit to the proprietors of the businesses involved. In the instant case the evidence shows that a number of people who stored airplanes with the defendant also had cars which were left on the defendant's lot and the keys were left in the defendant's possession. There is nothing to indicate that this was not part of the structure for storing and use of the airplanes. The burden of proving the exercise of ordinary care was on the defendant. The evidence shows that the defendant had charge of the plaintiff's airplane and car and that the defendant left the duty of caring for these high-priced properties to high school boys. The verdict is not without evidence to support it. The trial court has approved the verdict. No error of law is assigned. Hence it was not error to overrule the motion for a new trial. See Duggan v. Ware, 30 Ga. App. 107 ( 117 S.E. 121). It has been many times held that a bailment exists where a mutual benefit is derived although no payment per se is made for the bailment. See Dilberto v. Harris, 95 Ga. 571 ( 23 S.E. 112) and Walpert v. Bohan, 126 Ga. 532 ( 55 S.E. 181, 6 L.R.A. (NS) 828, 115 Am. St. Rep. 114, 8 Ann. Cas. 89). See also Goodyear Clearwater Mills v. Wheeler, 77 Ga. App. 570 ( 49 S.E.2d 184).
The trial court did not err in overruling the motion for a new trial.
Judgment affirmed. Townsend, Carlisle and Frankum, JJ., concur.