Opinion
44968.
ARGUED JANUARY 8, 1970.
DECIDED FEBRUARY 16, 1970.
Action for damages. Whitfield Superior Court. Before Judge Coker from Lookout Mtn. Circuit.
Pittman Kinney, L. Hugh Kemp, Donald Loggins, for appellant.
1. Where the appellee in this court points out no material inaccuracy or incompleteness of statement in appellant's brief, and makes no additional statement and cites no additional parts of the transcript, he will be held to have consented to a decision on appellant's statement of the case; and this court will accept appellant's statement as prima facie true and decided the case on the basis of this statement and the evidence cited and quoted in support thereof.
2. (a) A bailor has a right of action against a third-party tortfeasor for damage to the bailed property resulting in injury to his rights of general property or reversion, and the injury occurs at the time of damage to the bailed property. The bailor's action against the wrongdoer is not precluded, nor is the amount of damages reduced, by the fact that the bailee, whether gratuitously or not, may have repaired the property and restored it to its former condition by the time of suit. This is a matter for adjustment between the bailor and bailee and does not affect the grounds or measure of liability of the third-party tortfeasor by whose neglect the property was damaged.
(b) Generally, an owner out of possession, such as a bailor for a term, can only recover against a third-party tortfeasor for an injury done to his reversionary interest or for interference with the availability of the chattel to his possession. However, the rule is different if the bailor is entitled to immediate possession, such as a bailor at will. Where the bailment is not for a term and loss of use of the property results in an injury to the bailor's rather than the bailee's interest, the bailor may recover for loss of use in an action against the third-party tortfeasor.
3. (a) In an appeal from a judgment overruling a motion for new trial, as amended, the enumeration of such judgment as error, without separately enumerating as error each ground of the motion, is a sufficient compliance with Code Ann. § 6-810 where the motion as amended is included in the record and where appellant's brief argues separately each ground insisted upon.
(b) Where a bailment contract is an implied one resting in custom, practice, and a prior course of dealings, evidence as to these matters is admissible to show the existence, nature, and extent of the bailment.
ARGUED JANUARY 8, 1970 — DECIDED FEBRUARY 16, 1970.
This is the second appearance of this case. See Cincinnati, N.O. c. R. Co. v. Hilley, 118 Ga. App. 293 ( 163 S.E.2d 438), where we reversed the sustaining of defendant Hilley's res judicata motion.
This litigation involves a collision between plaintiff railroad company's locomotive and defendant's tractor-trailer on the track of the Southern Railway Company while the locomotive was on bailment by Cincinnati, New Orleans Texas Pacific to Southern. The bailor railroad sues for damages to the locomotive and for loss of its use. At the close of the evidence defendant moved for a directed verdict on the ground that plaintiff had failed to prove it suffered any injury and damage as a result of the collision, and the trial court granted the motion. Plaintiff appeals from the order overruling its motion for new trial, as amended, enumerating as error the directing of the verdict and entering judgment for defendant, and the overruling of the motion for new trial as amended.
In Part One of its brief, plaintiff states that the issue in this appeal is whether or not there was any evidence that it had sustained recoverable damages; that there was testimony showing the particular damages to the locomotive and the dollar amounts for materials and labor required to repair it; that these costs were fair and reasonable; that the locomotive was out of service for 96 hours and the fair reasonable charge for an out-of-service locomotive was $10 an hour; that the locomotive had been repaired in Southern's yard, and that there was no charge involved for any supervisory fees or general overhead but that the figures given were for actual expenses of labor and material and the actual rental; that the locomotive was restored to its former condition and returned to service; that the various railroads within the system used locomotives interchangeably, and that the Southern would total up the amount to be paid to another railroad for the use of its locomotive during the month, figured on the percentage of time the locomotive was used. Portions of the transcript are cited in support of this statement of the evidence.
1. Appellee having failed to point out any material inaccuracy or incompleteness of statement in appellant's brief and having made no additional statement or cited any additional parts of the transcript, we accept appellant's statement as prima facie true and decide the case on the basis of the statement and the evidence cited and quoted. Rule 17 (b) (1), this court ( 111 Ga. App. 883, 890; Code Ann. § 24-3617 (b) (1); Veal v. Riner, 214 Ga. 539 ( 106 S.E.2d 26); Ga. Stainless Steel Corp. v. Bacon, 120 Ga. App. 239 ( 170 S.E.2d 270).
2. (a) There can be no doubt that a bailor has a right of action against a third party for damage to the bailed property resulting in injury to his rights of general property or reversion. Code §§ 12-210, 105-1704, 105-1705; Lockhart v. Western A. R., 73 Ga. 472 (54 AR 883); Southern Bonded Whse. Co. v. Roadway Express, Inc., 104 Ga. App. 458 (3) ( 122 S.E.2d 147); 8 AmJur2d 1138, Bailments, § 252; Restatement (Second), Torts § 220. It was contended in support of defendant's motion for directed verdict, however, that since Southern, the bailee, had repaired the locomotive and restored it to its former condition, plaintiff bailor had suffered no loss or damage.
Concerning the bailee's rights, see Schley v. Lyon, 6 Ga. 530; Lockhart v. Western A. R., 73 Ga. 472, supra; Marietta Ice Coal Co. v. Western A. R. Co., 24 Ga. App. 725 ( 102 S.E. 182); Cincinnati, N. O. c. R. Co. v. Hilley, 118 Ga. App. 293 (2), supra.
This contention is without merit. In Harvard Trust Co. v. Racheotes, 337 Mass. 73 ( 147 N.E.2d 817, 67 ALR2d 596), an insurance company which had become subrogated to the rights of the mortgagee of an automobile sued a third party to recover for damages to the automobile which had been repaired at the expense of the insurance company and the mortgagor. The defendant argued that there was no injury or damage to the mortgagee's interest in the security because the automobile had been restored to its former condition, so that there was no claim to which the insurance company could be subrogated. This contention was rejected, the court holding, under prior decisions (Bell Finance Co. v. Gefter, 337 Mass. 69 ( 147 N.E.2d 815, 67 ALR2d 578); Morris Plan Co. v. Hillcrest Farms Dairy, Inc., 323 Mass. 452 ( 82 N.E.2d 889)), that chattel mortgagees and conditional vendors, whether technically bailors or not, had a right of action against a third person whenever a bailor would have one, and reasoning that after the collision the mortgagee had a right to proceed against the third party for damage to its security, it being immaterial that the automobile had been repaired at the time of suit.
Similarly, in Anheuser-Busch, Inc. v. Starley, 28 Cal.2d 347 ( 170 P.2d 448, 166 ALR 198), the owner of personal property being transported by a carrier sued a third party for damages to the property flowing from a collision between defendant and the carrier. Prior to the action the carrier paid the owner for the damage to the property, and the trial court granted defendant's motion for directed verdict on the ground that the owner had been fully compensated for its loss and that it was not a proper party plaintiff. The Supreme Court of California reversed, holding applicable the "collateral source rule" (see 22 AmJur2d 286, Damages, § 206) that where a person suffers personal injury or property damage by reason of wrongful act of another, an action against the wrongdoer for the damages suffered is not precluded nor is the amount of the damages reduced by the receipt of payment for his loss from a source wholly independent of the wrongdoer. Implicit in this holding, of course, is that the bailor's cause of action for injury to its interest accrued at the time of the collision which was not affected by a subsequent payment by the bailee.
In McCoy v. Moore, 185 Okla. 253 ( 91 P.2d 87), it was held that a bailor was not precluded from bringing an action against a third party tortfeasor because the bailed automobile was repaired at the expense of the bailee, the court stating: "We think it cannot be questioned that from and immediately after the collision the owner of the automobile acquired a right of action in tort against the [third party]." And see Price-Bass Co. v. Owen, 24 Tenn. App. 474 ( 146 S.W.2d 149), where it was held that payment by the bailee to the owner for damages to the bailed automobile did not constitute an accord and satisfaction so as to prevent the owner from bringing an action against the third-party tortfeasor. See also Peed v. Burleson's, Inc., 242 N.C. 628 ( 89 S.E.2d 256), where both bailor and bailee were allowed to sue jointly a third party for conversion, although the bailee had paid the bailor the agreed indemnity for the loss of the shipment.
The decisions in our courts are in harmony with the cited cases. In Raleigh Gaston R. Co. v. Western A. R. Co., 6 Ga. App. 616 ( 65 S.E. 586), it was held that a bailee's right of action for injury to property in its possession accrues at the time of the injury. And since "[i]n cases of bailments, where the possession is in the bailee. a trespass committed during the existence of the bailment shall give a right of action to the bailee for the interference with his special property and a concurrent right of action to the bailor for the interference with his general property" ( Code § 105-1704), the bailor's right of action for injury to its interest also accrues at the time of injury. This being so, under the "collateral source rule" which also obtains in this jurisdiction, the bailor's right of action was not affected by the subsequent repairing of the locomotive by Southern, the bailee, whether gratuitous or not. This is a matter to be adjusted between the bailor and the bailee and does not affect the grounds or the measure of liability of a third-party tortfeasor by whose neglect the property was damaged. Thus, appellant bailor could recover for the proven damages to its locomotive and it was error to direct the verdict for defendant.
( a) Property damage — collateral source insurance: City of Rome v. Rhodes, 134 Ga. 650 (1) ( 68 S.E. 330); Barrett v. Western A. R. Co., 144 Ga. 47 (1) ( 85 S.E. 1016); Hollomon v. Hopson, 45 Ga. App. 762 (7) ( 166 S.E. 45); Koon v. Atlantic C. L. R. Co., 90 Ga. App. 877, 879 ( 84 S.E.2d 703); Partridge v. Lee, 116 Ga. App. 800, 801 ( 159 S.E.2d 113). And see Powell v. Crowell, 63 Ga. App. 890 (2) ( 11 S.E.2d 918); Royal Crown Bottling Co. v. Stiles, 82 Ga. App. 254 (2) ( 60 S.E.2d 815); Renfroe v. Fouche, 26 Ga. App. 340 (5) ( 106 S.E. 303). Cf. Alwood v. Commercial Union Assur. Co., 107 Ga. App. 797 ( 131 S.E.2d 594).
( b) Wrongful death — ( 1) collateral source insurance: Western A. R. v. Meigs, 74 Ga. 857 (5); ( 2) collateral source workmen's compensation: Athens R. c. Co. v. Kinney, 160 Ga. 1, 4 ( 127 S.E. 290); Rome R. c. Co. v. Jones, 33 Ga. App. 617 (1) ( 127 S.E. 786); ( 3) collateral source compensation from State: Trice v. Wilson, 113 Ga. App. 715 ( 149 S.E.2d 530).
( c) Personal injuries — ( 1) collateral source continuation of wages: Nashville, C. St. L. R. Co. v. Miller, 120 Ga. 453 (1-3) ( 47 S.E. 959, 1 AC 210); Western A. R. Co. v. Sellers, 15 Ga. App. 369, 375 ( 83 S.E. 445); Wachtel v. Leonard, 45 Ga. App. 14 (1) ( 163 S.E. 512); ( 2) collateral source workmen's compensation: Blair v. Smith, 201 Ga. 747 ( 41 S.E.2d 133); Hotel Equipment Co. v. Liddell, 32 Ga. App. 590 (1) ( 124 S.E. 92); Sheffield Co. v. Phillips, 69 Ga. App. 41 (1) ( 24 S.E.2d 834); Gay v. Greene, 91 Ga. App. 78 (2) ( 84 S.E.2d 847). And see Echols v. Chattooga Mercantile Co., 74 Ga. App. 18, 23 ( 38 S.E.2d 675); Smith v. Payne, 85 Ga. App. 693, 699 ( 70 S.E.2d 163); Borochoff v. Fowler, 98 Ga. App. 411 (2) ( 105 S.E.2d 764); ( 3) collateral source insurance: Thompson v. Milam, 115 Ga. App. 396 ( 154 S.E.2d 721); ( 4) collateral source employer's payment of medical bills and money to live on: Limbert v. Bishop, 96 Ga. App. 652, 657 ( 101 S.E.2d 148); ( 5) collateral source payments by relatives in substantially the amount of lost wages: Story v. Pless, 100 Ga. App. 756 ( 112 S.E.2d 407); ( 6) collateral source nursing care furnished by relatives: Howard v. Hall, 112 Ga. App. 247, 254 ( 145 S.E.2d 70); ( 7) collateral source room and board furnished by relatives: Southeastern Greyhound Lines v. Fisher, 72 Ga. App. 717, 723 ( 34 S.E.2d 906); ( 8) collateral source retirement benefits: Southern R. Co. v. Cabe, 109 Ga. App. 432, 440 ( 136 S.E.2d 438).
Conversely, the fact that the bailee has paid the bailor the value of the property destroyed does not affect the bailee's right of action against the tortfeasor. Marietta Ice Coal Co. v. Western A. R. Co., 24 Ga. App. 725 (1), supra.
(b) As to recovery by the bailor for loss of use of the locomotive, the general rule is that an owner of property out of possession can only recover against a third person for an injury done to his reversionary interest or for interference with the availability of the chattel to his possession. Johnson v. Lovett, 31 Ga. 187; Restatement (Second), Torts § 220, Comment (b). However, the rule is different if the owner is entitled to immediate possession, such as a bailor at will, or a bailor for a term after the term has expired, or the bailee has defaulted. Restatement (Second), Torts § 219, Comment (a). "Thus the rule may be summed up by saying that a bailor at will may recover full damages, but a bailor for a term may recover only for the harm done his reversionary interests. . ." 8 AmJur2d 1138, Bailments, § 252.
The evidence cited by appellant bailor is to the effect that the railroads within the system used locomotives interchangeably, the user paying the owner a sum calculated on the amount of use. Since the bailment was not for a term but at will and the loss of use was an injury to the bailor's rather than the bailee's interest, and there being ample evidence to show the value of the loss of use, the bailor could recover therefor. Thus the directing of a verdict for defendant was erroneous for this reason also.
3. (a) Although appellant bailor has not separately enumerated as error the overruling of each ground of the motion for new trial, since the motion as amended is included in the record and the brief argues each ground separately, the enumeration of the overruling of the motion as amended reaches these special grounds. City of Douglas v. Rigdon, 116 Ga. App. 306 (1) ( 157 S.E.2d 66) and cases cited; Lovett v. State, 108 Ga. App. 478 (1) ( 133 S.E.2d 595).
(b) The special grounds complain of the exclusion of evidence relating to the custom, practices, and course of dealings of the railroads in regard to the interchanging of locomotives. The evidence was not offered to vary a written or specific oral contract in the sense of the parol evidence rule — no such contract existed, and the customs, course of dealings, etc., were the contract. Among other things the evidence as to the interchange of locomotives generally would have shown the nature and extent of this particular bailment made in the course of such dealings, including the fact that appellant bailor would be charged for the repairs made by the bailee Southern. The evidence was admissible and its exclusion was error. See, e.g., Wood v. Frank Graham Co., 91 Ga. App. 621, 626 ( 86 S.E.2d 691), a bailment case wherein Judge, now Justice, Nichols, after a thorough review of the authorities, stated for this court: "The above cases hold without dispute that in this State the introduction of evidence as to a general custom in a trade or business is permissible to show the full extent and purport of an agreement where such custom is not subject to the exceptions mentioned [such as where it is inconsistent with a written contract]."
Judgment reversed. Jordan, P. J., and Pannell, J., concur.