149 S.E.2d 255

A.A.A. PARKING, INC. v. BIGGER.

41763.Court of Appeals of Georgia.ARGUED JANUARY 11, 1966.
DECIDED APRIL 20, 1966. REHEARING DENIED MAY 3, 1966.

1. (a) If a bailee, through his negligence amounting to misfeasance, inflict injury upon the bailed property, the bailor may bring an action ex delicto, or he may declare upon the contract.

(b) But where the breach of duty by which the injury occurred amounts to nonfeasance, or the mere neglect of duty provided by the contract, either expressly or by implication, the action must be construed as one brought ex contractu.

(c) The original petition here, which did not allege positive acts and conduct amounting to misfeasance, but which charged no more than failure to continue performance of defendant’s duties under a bailment contract, sounded in contract, rather than in tort.

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(d) The trial court did not err in allowing plaintiff to recast his petition by an amendment which sounded in contract.

2. (a) When the contract of bailment was created, it imposed upon the bailee an implied obligation to return the property to plaintiff free from injury or in the same condition the property was in when the bailee received it.

(b) In an action ex contractu to recover upon breach of the latter obligation, it is sufficient to allege the contract of bailment and the loss.

(c) The failure of the bailee to use the required degree of care is not a matter for allegation and proof by the bailor, but the exercise of the required diligence is a matter of defensive pleading and proof by the bailee.

(d) The trial court did not err in overruling defendant’s general demurrer to the amended petition.

ARGUED JANUARY 11, 1966 — DECIDED APRIL 20, 1966 — REHEARING DENIED MAY 3, 1966 — CERT. APPLIED FOR.
Action for damages; bailment. Fulton Civil Court. Before Judge Williams.

John P. Bigger brought this action against A.A.A. Parking, Inc., to recover for damages to plaintiff’s automobile which plaintiff had stored upon a parking lot operated by defendant, a bailee for hire. Plaintiff alleged that when he returned to defendant’s parking lot to claim his car there was no one in charge of the lot at that time and the car was missing. It was subsequently located in a wrecked condition. Plaintiff charged that defendant was negligent in failing to lock the car before abandoning it on the lot, failing to maintain a watch over the car, and failing to protect it so as to prevent it from being stolen.

After a hearing, the trial court, on September 24, 1965, overruled certain grounds of special demurrer to the petition, withholding its ruling on defendant’s general demurrer, and giving plaintiff leave to amend within twenty days. Thereafter plaintiff offered an amendment striking all the paragraphs of the original petition and substituting a new petition which may be summarized as follows:

Plaintiff was the owner of a 1961 Chevrolet four-door automobile. On October 26, 1964, plaintiff drove the automobile

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into the entrance of a parking lot operated by defendant, which is in the business of receiving and parking vehicles for a specified cost. An attendant employed by defendant was on duty at the lot, and this attendant approached plaintiff and instructed him to leave the ignition of the car unlocked in order that the attendant could park the car. Plaintiff left the ignition unlocked and the attendant took custody and control of the car and moved it. Plaintiff agreed to pay to defendant $1.00 for the parking and storage of the car, and was issued a ticket for receipt of the car. Plaintiff returned to pick up the car at approximately 10 p. m., but it was gone. The car was subsequently located by the police and recovered as a stolen automobile. When the car was returned to plaintiff, it was smashed, bent, etc.

The allegations of the recast petition were substantially similar to the original petition except that the recast petition contained no averments of fault or negligence by defendant in connection with theft of the car.

Defendant filed general and special demurrers to the amendment and also filed objections to the allowance of the amendment on the grounds that (1) it added a new and distinct cause of action, (2) that the original petition sounded in tort and the amendment in contract and (3) that the amendment constituted a misjoinder of causes of action. After a hearing the trial court entered judgments overruling the objections to allowance of the amendment and overruling all the grounds of demurrer.

Defendant enumerates error on the trial court’s judgments overruling defendant’s objections to plaintiff’s amendment and overruling various demurrers.

Charles W. Bergman, for appellant.

Henning Martin, for appellee.

BELL, Presiding Judge.

1. “The plaintiff did not originally designate his action as one ex delicto or one ex contractu, and indeed, it was not necessary that he so designate it, for the nature of an action is to be determined, not by the designation of the pleader, but by the intrinsic contents of the petition, its recitals of fact, the nature of the wrong sought to be remedied, and the kind of relief sought.” Rich’s, Inc. v. Kirwan Bros.,

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Inc., 97 Ga. App. 58, 60 (102 S.E.2d 648); Pennington v. Douglas c. R. Co., 3 Ga. App. 665, 671 (60 S.E. 485).

Of course, the mere fact that the original petition charged negligence, a term more frequently associated with the law of torts, does not necessarily mean that the action was one ex delicto, for the duty to exercise care and diligence may also be provided by contract.

“When a transaction partakes of the nature both of a tort and a contract, the party complainant may waive the one and rely solely upon the other.” Code § 105-105. Thus, for a bailee’s act amounting to conversion of the bailed property, the bailor may sue either in trover (Caldwell v. Alma Gin c. Co., 27 Ga. App. 128
(107 S.E. 566)) or upon an implied contract to redeliver the property upon termination of the bailment (Bates v. Bigby, 123 Ga. 727, 729 (57 S.E. 717)). And if the bailee, through his negligence amounting to misfeasance, inflict injury upon the property, the bailor may bring an action ex delicto (Miller v. Ben H. Fletcher Co., 142 Ga. 668 (2, 3) (83 S.E. 521)), or he may declare upon the contract (Rockwell v. Proctor, 39 Ga. 105).

“But it is not every breach of contract that gives a cause of action in tort; and so, where the breach complained of is simply the neglect of a duty such as is expressly provided by the contract itself, the action will be construed and treated as one brought ex contractu.” Fain v. Wilkerson, 22 Ga. App. 193, 194
(95 S.E. 752); Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252, 253 (76 S.E.2d 536); Georgia Kaolin Co. v. Walker, 54 Ga. App. 742, 746 (189 S.E. 88). This principle is applicable also where the breach complained of is simply the neglect of a duty provided by the contract by implication, either of law or of fact. Spence v. Erwin, 200 Ga. 672 (3a) (38 S.E.2d 394); Code § 105-101.

Thus, where the plaintiff’s petition is based on the defendant’s alleged nonfeasance of duty provided by contract and not on the defendant’s misfeasance, it does not set forth a cause of action ex delicto. Orkin Termite Co. v. Duffell, 97 Ga. App. 215, 216 (102 S.E.2d 629); see generally Prosser, Torts (3d Ed. 1964), pp. 634-639.

The original petition here showed that defendant abandoned

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the automobile on the parking lot, which obviously was open to the public. It thus relinquished its custody and control of the automobile, and no bailment thereafter existed. The petition did not allege positive acts and conduct amounting to misfeasance, but at most, it charged only a failure to continue performance of defendant’s duties under a bailment contract, or nonfeasance. Under these circumstances we do not think that the alleged conduct of the defendant afforded a cause of action ex delicto. We therefore construe the original petition as one sounding in contract.

Nothing said in this division of the opinion is in conflict with Parker Motor Co. v. Spiegal, 33 Ga. App. 795 (127 S.E. 797), where the averment of negligence was similar to the one here. In that case other allegations of the petition showed positive conduct amounting to misfeasance.

The trial court did not err in allowing the amendment to the petition over defendant’s objections upon the grounds stated.

2. “All bailees are required to exercise care and diligence in protecting and keeping safely the thing bailed.” Code § 12-103. “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.” Code § 12-403. See also Code § 12-404 and Code Ann. § 109A-7-204 (1). Nothing in the Uniform Commercial Code repealed or affected Code §§ 12-103, 12-104, 12-403, or 12-404. Thus, when the contract of bailment was created, the contract imposed upon defendant, by implication of law, the duty to exercise ordinary care to protect and keep safe plaintiff’s automobile during the term of bailment.

The bailee was not an insurer, but there was an implied obligation to return the property to plaintiff free from injury, or in the same condition that the property was in when the bailee received it. In an action ex contractu to recover upon breach of this obligation the failure of the bailee to use the required degree of care is not a matter for allegation and proof by the bailor. Rather, the exercise of the required diligence is a matter of defensive pleading and proof by the bailee.

In this connection see Code § 12-104, which provides: “In all

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cases of bailment after proof of loss, the burden is on the bailee to show proper diligence.” Code § 12-104 is a rule of evidence rather than a rule of pleading. Thus, in an action ex delicto to recover for a breach of duty resulting in damage to the bailed property, it may be proper to allege the contract in order to show a duty but it is always necessary to allege negligence of the bailee as the proximate cause of the injury. See A.A.A. Parking, Inc. v. Black, 110 Ga. App. 554
(139 S.E.2d 437). In an action ex contractu, it is sufficient to allege the contract of bailment and the loss. See 8 Am. Jur. 2d 1182, Bailments, § 295.

In order to constitute a bailment, it is essential that the bailee acquire an independent and temporarily exclusive possession of the property. Atlantic C. L. R. Co. v. Baker, 118 Ga. 809, 810 (45 S.E. 673). Here the amended petition showed a delivery of plaintiff’s automobile to defendant sufficient to meet this requirement. Elliott v. Levy, 77 Ga. App. 562, 565
(49 S.E.2d 179).

We are aware of cases which hold that if the bailee does not rely merely upon the failure to return the property in proper condition but goes further and alleges that the loss was due to fire, theft or similar cause, the petition states no cause of action unless it goes on to allege that the cause of loss was due to the bailee’s negligence. Golowitz v. Magner, 203 NYS 421 (208 App. Div. 6); Smith v. Noe, 159 Tenn. 498 (19 S.W.2d 245). We decline to follow this rule. See National Fire Ins. Co. v. Mogan, 186 Ore. 285 (206 P.2d 963). In this State a showing that the loss was caused by theft does not by itself rebut the presumption of the bailee’s negligence which obtains upon proof of the loss of the bailed property. Merchant’s Nat. Bank v. Guilmartin, 93 Ga. 503, 505 (21 S.E. 55). “It will not do to hold that a parking lot operator, charging the public for his services in caring for customers’ cars, can escape liability for the loss of a car stolen from his parking lot, in the absence of clear and satisfactory proof showing diligence on his part throughout the bailment.” Loeb v. Whitton, 77 Ga. App. 753, 756 (49 S.E.2d 785). Thus, the amended petition, which showed that the damage to plaintiff’s car was caused by theft, did not negative negligence

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or other breach of duty by the bailee so as to excuse his failure to comply with his implied obligation to return the car in as good condition as it was in when the bailee received it.

The trial court did not err in overruling defendant’s general demurrer to the amended petition.

3. The trial court did not err in overruling defendant’s special demurrers to plaintiff’s amended petition.

Judgment affirmed. Jordan and Eberhardt, JJ., concur.