139 S.E.2d 437


40916.Court of Appeals of Georgia.

1. Under decisions of the Georgia Supreme Court, in a tort action for injury to property caused by negligence of a bailee, it is necessary to allege in the petition the particular acts of negligence relied on for recovery, when called for by appropriate special demurrer.

2. When a suit sounds in tort and a contract is pleaded merely as an inducement, the contract need not be set out with the same particularity as is necessary in a suit based upon the contract.

Action for damages; bailment, etc. Fulton Civil Court. Before Judge Williams.

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The plaintiff’s petition for damages alleged: The defendant was engaged in the business of parking automobiles for a consideration. The plaintiff parked his automobile at the defendant’s parking lot. It was in good condition when parked but had been damaged when the plaintiff went to the parking lot to remove it. The damage was caused by the defendant’s failure to exercise due care and diligence in the protection and safe keeping of the automobile as required by Code § 12-103. After the trial court sustained general and special demurrers and granted the plaintiff leave to amend, the plaintiff filed an amendment, to which the defendant objected, adding allegations that he left his automobile in the defendant’s parking lot pursuant to the normal course of the defendant’s business, and agreed to pay the defendant a consideration for parking the automobile, and delivered the automobile to the “employees of defendant . . . the keys, control and exclusive possession.” The defendant filed general and special demurrers to the petition as amended. The defendant assigns error on the trial court’s overruling of its objections to the amendment and demurrers to the petition.

Chas. W. Bergman, for plaintiff in error.

Greer, Hall Morris, Richard G. Greer, Paul R. Koehler,

HALL, Judge.

1. Code § 12-103 requires bailees “to exercise care and diligence in protecting and keeping safely the thing bailed.” Code § 12-104 provides that “after proof of loss, the burden of proof is on the bailee to show proper diligence.” The bailor, “setting up a breach of the duty may elect as to his remedy, and rely upon either his right under the contract or proceed for damages as in a case of tort.” Parker Motor Co. v. Spiegal, 33 Ga. App. 795, 796 (127 S.E. 797).

Where the bailor elects to proceed in an action in trot, is he required, as against a special demurrer, to allege specific acts or omissions of negligence of the bailee to show a prima facie case in his petition even though he is relieved by Code § 12-103 of the burden of presenting evidence of the bailee’s negligence at the trial? This court in Elliott v. Levy, 77 Ga. App. 562
(49 S.E.2d 179) reversed the sustaining of a special demurrer on

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the ground that the bailor’s petition did not show what acts of negligence resulted in the loss of his automobile, and held that allegations showing a bailment and a loss of the property stated a prima facie case and cast the burden on the bailee of showing proper diligence with respect to the subject-matter of the bailment under Code § 12-104. We are of the opinion that th Elliott case is sound for the reason that a plaintiff should not be required to plead any more than he is required to prove to establish a prima facie case. However, the Elliott case is in conflict with the holdings of the Supreme Court in Miller v. Ben H. Fletcher Co., 142 Ga. 668 (4) (83 S.E. 521) and Stewart v. Greene, 124 Ga. 975 (1) (53 S.E. 450) and must yield accordingly. The Miller and Stewart cases hold that a bailor’s petition containing a general allegation of negligence is subject to a special demurrer which calls for the particular acts of negligence relied on for recovery. See also Parker Motor Co. v. Spiegal, 33 Ga. App. 795 (3), supra; Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (50 S.E. 974). The holdings in th Miller and Stewart cases are controlling on the question of pleading, even though the statute relieves the bailor of affirmatively proving specific negligence, but in effect authorizes an inference of negligence from the loss. Code § 12-104; Frey v. Macon Sash, Door c. Co., 112 Ga. 242
(37 S.E. 376); Hight Accessory Place v. Lam, 26 Ga. App. 163
(105 S.E. 872); Atlantic C. L. R. Co. v. Barksdale, 32 Ga. App. 643
(124 S.E. 362); Richter Bros. v. Atlantic Co., 59 Ga. App. 137, 142
(200 S.E. 462). Thus a bailor who elects to proceed in tort must allege, as against a special demurrer, specific acts of negligence, even though he need not prove these allegations at the trial in order to show a prima facie case under Code § 12-104. The trial court erred in overruling special demurrers numbered 4 and 5.

2. The defendant argues that its general demurrer should have been sustained because the petition does not set out a contract or consideration for bailment with sufficient certainty. When a suit sounds in tort and a contract is pleaded merely as an inducement, the contract need not be set out with the same particularity as is necessary in a suit based upon the contract Georgia R. Bkg. Co. v. Sewell, 57 Ga. App. 674, 683
(196 S.E. 140); Orkin Termite Co. v. Duffell, 97 Ga. App. 215

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(102 S.E.2d 629). The trial court did not err in overruling the general demurrer.

3. The original petition set out facts sufficient to indicate and specify a particular transaction as a cause of action in tort, and the amendment clearly referred to the same cause of action. The trial court did not err, therefore, in overruling the defendant’s objection to the plaintiff’s amendment on the ground that the original petition showed nothing to amend by and changed the original cause of action and added a new one, or in overruling the special demurrer on the latter ground. Code § 81-1302; Ellison v. Georgia R. Co., 87 Ga. 691, 707
(13 S.E. 809); Milton v. Milton, 195 Ga. 130 (23 S.E.2d 411); Atkinson v. Brantley, 15 Ga. App. 129 (82 S.E. 773).

Judgment reversed for the reason stated in Division 1; otherwise affirmed. Nichols, P. J., and Russell, J., concur.