Opinion
34800.
DECIDED DECEMBER 2, 1953.
Damages. Before Judge Mitchell. DeKalb Civil Court. June 22, 1953.
George P. Dillard, for plaintiff in error.
O. C. Hancock, D. W. Rolader, contra.
The special grounds of the motion for a new trial show no harmful error, the verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.
DECIDED DECEMBER 2, 1953.
Cozart C. Smith sued Melvin F. Burks, in the Civil Court of DeKalb County, for damages to a 1949 Chevrolet truck. It was alleged in the petition: that the plaintiff, who operates a laundry and dry-cleaning business in Decatur, Georgia, employed the defendant as a truck driver and route man, to pick up and deliver dry cleaning and laundry; that the plaintiff permitted the defendant, upon completion of the day's work, to drive said truck to his residence and back to the plaintiff's place of business the following morning, solely as a convenience to the defendant, but he did not authorize the defendant to drive the truck after hours for any other purpose than transportation to and from his residence and place of business, and did not authorize him to permit passengers to accompany him in said truck, and, while in possession of the truck, the defendant was expected to exercise care and diligence in protecting and keeping safe the truck which had been bailed to him; that, on or about February 20, 1953, the defendant, after working hours, took said truck, with the permission of the plaintiff, for the sole purpose of driving it to his residence that night and back to work on the following morning, and on February 21, 1953, between the hours of 2 and 3 a. m., the defendant was driving said truck on DeKalb Avenue approaching Hurt Street in the City of Atlanta, while under the influence of intoxicating liquors, and ran through a stop sign at said time and place and collided with a car that was being driven by M. J. Adams, causing the described damage to the plaintiff's truck; that the aforesaid described damage to the truck was caused by the negligence of the defendant as bailee in failing to exercise ordinary care and diligence in protecting and keeping the truck which had been bailed to him by the plaintiff; that the value of the truck immediately before the collision was $765, and immediately thereafter it was worth only $440; and he prayed for judgment for $325, the difference between the two above-mentioned amounts.
The defendant filed his answer, denying liability, and further alleged: that the plaintiff permitted and allowed him to use said truck for business and pleasure; that the plaintiff gave the defendant specific permission to use said truck at any and all times, day or night, without reservations; that, on February 21, 1953, while employed as a laundry-route man by the plaintiff, he was driving the Chevrolet truck at the intersection of DeKalb Avenue and Hurt Street in Atlanta, at which time he was returning from his laundry route to his residence and the accident in question occurred, resulting in the damage to the plaintiff's truck; that said accident was not caused by any negligence on the part of the defendant, but was caused by the negligence of the plaintiff in furnishing him with a truck equipped with faulty brakes; that, at the time and place of the accident, the defendant attempted to stop the truck by applying the brakes, but the brakes failed to hold and the collision occurred, resulting in the damage to the truck, the defendant having done everything possible under the circumstances to avoid the collision; that the defendant had applied the brakes on several occasions immediately before the collision occurred and the brakes operated properly, but at the time and place of the collision he applied the brakes and they failed to work, this being the direct cause of the collision with the other car.
The plaintiff testified that the defendant was employed by him as a route man on a laundry route, and that the defendant used the 1949 Chevrolet truck on said route, and, as a convenience to the defendant, he gave him permission to drive the truck to and from his home after completing his work on the laundry route, but that he was not permitted to drive or use the truck for any other purpose after hours, nor was he permitted to carry passengers in the truck. The defendant was instructed to keep the truck in good mechanical condition, and it was his responsibility to see that all needed repairs to the truck were made, the cost thereof to be billed to the plaintiff. On February 20, 1953, in accordance with said agreement, the plaintiff permitted the defendant to drive the Chevrolet truck to and from work after hours, and, on the morning of February 21, 1953, he learned that the truck had been badly damaged in a collision while it was being driven by the defendant between 2 and 3 a. m. that morning. He had not authorized the defendant to drive the truck in picking up laundry between those hours. The defendant was to operate the laundry route during the day, and, while his hours were not specified, they were to be such as would be reasonable to the customers in carrying on the business. Another truck driver, by the name of Wages, was also allowed to keep his truck at home at night and to use it for transportation to and from his work. The plaintiff testified as to the market value of the truck before and after the accident, as alleged in his petition, in estimating the amount of his damage.
A. L. Ellerby, a police officer, testified that he investigated the accident in question on or about February 21, 1953, which occurred at DeKalb Avenue and Hurt Street, when the defendant failed to stop at a stop sign and collided with a car that was being operated by M. J. Adams. He testified that Burks was under the influence of alcohol, that he was staggering and was incoherent, and there was a strong odor of whisky about his person; that Mrs. Frances Whitlock was with him, and she stated that they had both been drinking whisky.
The evidence of the plaintiff and several other witnesses, as to the damage to the plaintiff's truck caused by the collision in question, was that the difference in the value of the truck before and after the collision was approximately $325.
The defendant testified: that when he was employed by the plaintiff, it was agreed that he could work at any time, as long as he kept up the laundry route, and so he ran it for about two hours in the morning, three to five hours in the afternoon, and then he had a night run; that the brakes of the truck seemed a little loose about 6 o'clock on the afternoon of February 20, 1953, and he stopped and had some fluid added to them, and the brakes then worked all right until he went to stop at the intersection where the collision occurred, and when he went to use the brakes there, he just did not have any brakes, and the failure of the brakes to work was the cause of the accident and the damage to the truck, which he could not have avoided.
The defendant further testified: that, in his contract of employment with the plaintiff, he was given the privilege of driving the truck to and from home, and he was told that he was his own boss, and if he had something to do, to go ahead and do it, as long as it did not interfere with his laundry route; that on the night of the collision he ended up on a late call near Buckhead, and then went to town and parked near the Journal Building; that he met up with Mrs. Whitlock, his former wife, and they went to Thompson's Cafeteria, where they had coffee and discussed the possibility of raising money to put their boy in a private school the next year; that they left there and went to the Crystal Place on Marietta Street, and left there about 1 o'clock; that Mrs. Whitlock lived in Blair Village near Hapeville, and he was driving her home when the accident occurred; that he was going to turn right on Whitehall Street, but missed his turn and went on out DeKalb Avenue; that he lived on Vaughn Street off of Whitefoord Avenue near Memorial Drive; that he had had nothing to drink in the nature of alcohol, except a bottle of beer, which he drank at about 9:30, with a barbecue sandwich, after he had finished his work that night; that he finished his laundry route at about 9 o'clock and was operating the truck for his own benefit after that time; that he was never authorized to take the truck and drive it all night long and pick up whoever he wished; and that he and Mrs. Whitlock had not been drinking heavily.
Mrs. Frances Whitlock testified: that the defendant, Burks, was her former husband; that she met up with him at about 11 o'clock on the night of the accident and was with him for three to four hours and was riding with him when the accident occurred at DeKalb Avenue and Hurt Street; that she did not see him drink any beer or whisky that night; that he tried to stop the truck before the collision occurred, but the brakes would not stop it; that she had not noticed anything wrong with the brakes before that time and had seen nothing to indicate that Burks was under the influence of alcohol; that she did not recall telling the police officer that night that she and Burks had been drinking; that she and Burks had not made a date to meet that night, but that they met up and were discussing and making plans for the welfare of their child.
The jury returned a verdict for the defendant. The plaintiff's motion for a new trial was overruled, and the exception here is to that judgment.
It will be seen from the pleadings and the evidence that the plaintiff operated a dry-cleaning and laundry business and employed the defendant as a route man to pick up and deliver dry cleaning and laundry; that the defendant drove the plaintiff's truck in doing this work and was permitted to use the truck, after he had finished his work, in going to and from his home; but the parties differ as to what their agreement was in this respect, and as to what extent the truck could be used by the defendant under their agreement. The defendant was to keep the truck in proper repair, and the plaintiff was to pay for such repairs. The status of bailor and bailee existed between the plaintiff and the defendant with reference to the use of the truck by the defendant after he had finished his work as a laundry-route man. The plaintiff contends that the defendant was not authorized by him to use the truck at the time and place of the accident, and that by reason of such unauthorized use and through the negligence of the defendant, his truck was damaged, and the defendant is liable therefor. The defendant contends that, under his agreement with the plaintiff, he had the right to use the truck for his own personal use at any time, just so it did not interfere with his work on the laundry route, and he contends that the damage to the truck was due to its defective brakes, that is, the unforeseen and sudden failure of the brakes to work, and that the accident could not have been avoided by him.
A bailment is a delivery of goods or property for the execution of a special object beneficial either to the bailor or the bailee, or both, and upon a contract or agreement, express or implied, to carry out the object. Code § 12-101. "All bailees are required to exercise care and diligence in protecting and keeping safely the thing bailed. Different degrees of diligence are required, according to the nature of the bailments." Code § 12-103. "In all cases of bailment, after proof of loss, the burden of proof is on the bailee to show proper diligence." Code § 12-104.
(a) The plaintiff, as movant, contends in special ground 4 of his motion for new trial that it was error for the court to charge the jury: "The effect of the defendant's pleading is to put the burden of proof upon the plaintiff to establish to your satisfaction by a legal preponderance of the evidence that the allegations the plaintiff makes are true, except such as are admitted to be true." This was not error, where the court immediately thereafter and in connection therewith, charged the jury that, "in all cases of bailment, after proof of loss, or as in this case, damages, the burden of proof is on the bailee, and in this case that is the defendant, to show proper diligence."
(b) Under the facts and circumstances of this case, it was not error, as contended by the movant in ground 6 of his motion, for the court to charge the jury: "If you believe that this defendant was operating this automobile in the scope of his employment and in accordance with the agreement with his employer, then he would be required to exercise ordinary diligence. Ordinary diligence means that care which every prudent person takes of his property of a similar nature; the absence of such diligence is termed ordinary negligence."
(c) The movant contends in special ground 7 of his motion that the court erred in charging the jury: "The defendant alleges and contends that the cause of the accident was by reason of failure of brakes. I charge you this rule of law: the burden rests upon the defendant to establish, not only that the act of God occasions ultimately the loss, but that the negligence of the defendant did not contribute to it. And the act of God in this case would be the unforeseen failure of the brakes, if such did happen." This charge was not harmful error, as against the movant, where the defendant contended and testified that the cause of the collision in question was the failure of the brakes to work, an event which could not have been foreseen by him, as he contends. While the expression, "act of God," may have been inapt as this was not pleaded by the plaintiff, the defendant did plead and his evidence shows that the collision in question and the resulting damage to the truck were caused by the sudden failure of the brakes on the truck to work, and that this was not contributed to by any negligence on his part. In these circumstances, no harmful error is shown by the charge here complained of. See Richter v. Atlantic Co., 65 Ga. App. 605, 608 (3) ( 16 S.E.2d 259).
(d) There was some evidence to the effect that, at the time of the collision in question, the defendant was operating the truck as though it had been loaned to him; and the judge charged the jury: "If you believe that this defendant was operating the automobile outside the scope of his employment, then he would be required to exercise extraordinary diligence in the operation of the vehicle, looking to the preservation of the property. Extraordinary diligence means that extreme care and caution which every prudent and thoughtful person will use in securing and preserving their own property. The absence of such diligence is termed slight negligence." The judge then explained in detail the rules with reference to ordinary care and diligence, and extraordinary diligence. We have carefully examined special grounds 5, 8, and 9 of the motion, which complain of the failure to charge certain principles, without a request, and we are of the opinion that no harmful error is shown by any of these special grounds. We have read the entire charge of the court, and the same was a full and fair submission to the jury of the issues in the case.
(e) The evidence was in conflict. But, if the accident in question occurred as the defendant contended it did, and was due to an unforeseen and sudden failure of the brakes to work, an act over which he had no control, so that under the circumstances he could not have avoided the collision and damage to the truck, then a finding in his favor was authorized. We think there was sufficient evidence to authorize the verdict; and the court did not err in denying the motion for new trial.
Judgment affirmed. Felton and Quillian, JJ., concur.