O.C.G.A. § 44-12-44 (2019)

Annotations

Cross references. Risk of loss in the absence of breach, § 11-2-509.

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION BAILOR’S BURDEN OF PROOF BAILEE’S BURDEN OF PROOF General Consideration Nothing in O.C.G.A. T. 11 repeals or affects O.C.G.A. § 44-12-44. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578, 149 S.E.2d 255, 1966 Ga. App. LEXIS 1141 (1966). O.C.G.A. § 44-12-44 establishes rule for shifting of burden of introducing evidence or of going forward with the evidence. Deloach v. Automatic Transmission & Brake Shop, Inc., 106 Ga. App. 797, 128 S.E.2d 512, 1962 Ga. App. LEXIS 858 (1962). O.C.G.A. § 44-12-44 means that, after the bailor proves the bailment and that there was loss to the property bailed, the burden is then placed upon the bailee to show that the exercise of proper diligence according to the nature of the bailment. Deloach v. Automatic Transmission & Brake Shop, Inc., 106 Ga. App. 797, 128 S.E.2d 512, 1962 Ga. App. LEXIS 858 (1962). The burden referred to in O.C.G.A. § 44-12-44 is the burden of introducing evidence or of going forward with the evidence. Ammari v. Sohn, 197 Ga. App. 486, 398 S.E.2d 804, 1990 Ga. App. LEXIS 1337 (1990). O.C.G.A. § 44-12-44 is rule of evidence rather than 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. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578, 149 S.E.2d 255, 1966 Ga. App. LEXIS 1141 (1966). “Loss” defined. - Loss, as used in O.C.G.A. § 44-12-44, does not mean merely a casual losing of the thing bailed,

but is used in the sense of damage or injury. Western Union Tel. Co. v. Fontaine, 58 Ga. 433, 1877 Ga. LEXIS 134 (1877); Hawkins v. Haynes, 71 Ga. 40, 1883 Ga. LEXIS 136 (1883); Richmond & D.R.R. v. White & Co., 88 Ga. 805, 15 S.E. 802, 1892 Ga. LEXIS 105 (1892); Central R.R. v. Hasselkus & Stewart, 91 Ga. 382, 17 S.E. 838, 1893 Ga. LEXIS 333 (1893); Allen v. Southern Ry., 33 Ga. App. 209, 126 S.E. 722, 1924 Ga. App. LEXIS 822 (1924). “Safekeeping” construed. - The word “safekeeping” in an agreement for storage of goods in a warehouse does not imply a much higher degree of care than the law requires of a defendant nor does the word imply a guarantee against damage or harm. Harper Whse., Inc. v. Henry Chanin Corp., 102 Ga. App. 489, 116 S.E.2d 641, 1960 Ga. App. LEXIS 660 (1960). Before bailee is charged with duty of safekeeping property, bailee must assent to bailment, either expressly or impliedly. Davidson v. Ramsby, 133 Ga. App. 128, 210 S.E.2d 245, 1974 Ga. App. LEXIS 988 (1974). O.C.G.A. § 44-12-44 applies to carriers. Central R.R. & Banking Co. v. Anderson, 58 Ga. 393, 1877 Ga. LEXIS 121 (1877); Rome R.R. v. Wimberly, 75 Ga. 316, 1885 Ga. LEXIS 124 (1885); Holly v. Southern Ry., 119 Ga. 767, 47 S.E. 188, 1904 Ga. LEXIS 355 (1904); Southern Ry. v. Edmundson, 123 Ga. 287, 51 S.E. 474, 1905 Ga. LEXIS 445 (1905). See also Western Union Tel. Co. v. Blanchard, Williams & Co., 68 Ga. 299, 1882 Ga. LEXIS 1 (1882). Bailor may elect remedy. - A bailor, setting up a breach of the duty of bailee, may elect as to the remedy and may rely upon either the bailor’s right under the contract or proceed for damages as in a

case of tort. AAA Parking, Inc. v. Black, 110 Ga. App. 554, 139 S.E.2d 437, 1964 Ga. App. LEXIS 699 (1964). A bailor who elects to proceed in tort must allege specific acts of negligence, even though the bailor need not prove these allegations at the trial in order to show a prima facie case under O.C.G.A. § 44-12-44. AAA Parking, Inc. v. Black, 110 Ga. App. 554, 139 S.E.2d 437, 1964 Ga. App. LEXIS 699 (1964). Bailor’s contributory negligence. - Where the plaintiff leased an airplane to the defendant, and sent with the airplane a co-pilot employed by the plaintiff, and the airplane was subsequently damaged due to a steering mechanism malfunction, the evidence created a jury question as to the plaintiff’s contributory negligence. Plaintiff was not entitled to a directed verdict. Jet Air, Inc. v. EPPS Air Serv., Inc., 194 Ga. App. 829, 392 S.E.2d 245, 1990 Ga. App. LEXIS 362 (1990), cert. denied, No. S90C0892, 1990 Ga. LEXIS 767 (Ga. May 16, 1990). Bailee not liable for unintentional invasion of bailor’s third-party interests. - A bailee who is negligent with respect to bailed goods is not liable for the unintentional invasion of the interest of the bailor in the bailee’s contractual or employment relationships with third persons. Morse v. Piedmont Hotel Co., 110 Ga. App. 509, 139 S.E.2d 133, 1964 Ga. App. LEXIS 684 (1964). Jury instruction on the duties of bailor and bailee, which comported word for word with O.C.G.A. § 44-12-44 and with the standard instruction appearing at p. 39 of Suggested Pattern Jury Instructions, I (2d ed.), Council of Superior Court Judges of Ga. (Civil Cases), 1984, was not in error. Custom Coating, Inc. v. Parsons, 188 Ga. App. 506, 373 S.E.2d 291, 1988 Ga. App. LEXIS 1075 (1988). Questions of diligence and negligence determined by jury. - Ordinarily in bailment all questions of diligence and negligence are questions of fact for determination by the jury. Loeb v. Whitton, 77 Ga. App. 753, 49 S.E.2d 785, 1948 Ga. App. LEXIS 635 (1948).

Bailor’s Burden of Proof Burden of proof required before presumption of bailee’s negligence arises. - The burden is on the bailor to prove the loss, destruction, disappearance of or injury to the property while it was in the bailee’s possession and exclusive control, before the presumption that the loss was occasioned by the bailee’s negligence arises. Millender v. Looper, 86 Ga. App. 430, 71 S.E.2d 724, 1952 Ga. App. LEXIS 968 (1952). Presumption of negligence arises, if alleged, where possession is shown in the bailee at the time of damage to the property. United States Sec. Whse., Inc. v. Brooks, 115 Ga. App. 834, 156 S.E.2d 217, 1967 Ga. App. LEXIS 1274 (1967). Proof of loss or damage achieved by direct or circumstantial evidence. - Proof of loss or damage to property while under a bailee’s control may be done by either direct or circumstantial evidence. Walker Elec. Co. v. Sullivan, 79 Ga. App. 13, 52 S.E.2d 477, 1949 Ga. App. LEXIS 577 (1949). Defendant’s failure to deliver stored property on demand establishes prima facie case for the plaintiff. Washburn Storage Co. v. Mobley, 94 Ga. App. 113, 94 S.E.2d 37, 1956 Ga. App. LEXIS 479 (1956); Harper Whse., Inc. v. Henry Chanin Corp., 102 Ga. App. 489, 116 S.E.2d 641, 1960 Ga. App. LEXIS 660 (1960). A parking lot operator, charging the public for the operator’s services in caring for customers’ cars, cannot escape liability for the loss of a car stolen from the operator’s parking lot, in the absence of clear and satisfactory proof showing diligence on the operator’s part throughout the bailment. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578, 149 S.E.2d 255, 1966 Ga. App. LEXIS 1141 (1966). Bailee’s Burden of Proof Burden on bailee to rebut presumption. - A presumption of negligence arises where possession is shown in the bailee at the time of damage to the property. The burden then is on the bailee to

Bailee’s Burden of Proof (Cont’d) prove that the injury to the property was not occasioned by negligence on the bailee’s part. Scott v. Purser Truck Sales,Inc., 198 Ga. App. 611, 402 S.E.2d 354, 1991 Ga. App. LEXIS 189 (1991). In order to rebut the evidentiary presumption, the bailee must negate every inference of negligence on its part, as the presumption in itself is sufficient to support a verdict in favor of the bailor, and it is only after the bailee has met its burden of proof by showing it exercised the required standard of diligence that the burden of going forward with the evidence shifts back to the bailor, who then has the burden of producing evidence to show negligence on the part of the bailee. Scott v. Purser Truck Sales, Inc., 198 Ga. App. 611, 402 S.E.2d 354, 1991 Ga. App. LEXIS 189 (1991). Once prima facie case for plaintiff is established, defendant can prevail only by establishing that defendant exercised ordinary care to prevent the loss or destruction of the plaintiff’s property. Harper Whse., Inc. v. Henry Chanin Corp., 102 Ga. App. 489, 116 S.E.2d 641, 1960 Ga. App. LEXIS 660 (1960). Affirmative showings of diligence. - Once the bailor has proved loss or damage to property while it is under the control of the bailee, there is a presumption that the bailee was negligent unless the bailee shows to the satisfaction of the jury that the bailee exercised proper diligence. Walker Elec. Co. v. Sullivan, 79 Ga. App. 13, 52 S.E.2d 477, 1949 Ga. App. LEXIS 577 (1949). A bailee cannot be exculpated from the liability of loss by failing to allege and prove affirmative showings of diligence. Light v. Smith, 86 Ga. App. 591, 71 S.E.2d 844, 1952 Ga. App. LEXIS 1015 (1952). Bailee must establish absence of contributory negligence. - Although a bailee need not necessarily prove that the loss was occasioned by a particular exception, the bailee must establish that the bailee’s own negligence did not contribute thereto. Haynie v. A & H Camper Sales, Inc., 233 Ga. 654, 212 S.E.2d 825, 1975 Ga. LEXIS 1409 (1975).

Evidence was sufficient to find that the defendant construction company bailee failed to carry its burden of showing that it exercised the requisite degree of care for a laser surveying unit where there was evidence that the defendant had been experiencing burglary problems, that its job superintendent had been taking the previously loaned prototype home for safekeeping, and that the plaintiff’s representative advised the superintendent that the superintendent should similarly take the replacement unit home because it was more expensive than the prototype. Frontier Contracting Co. v. L.S.R., Inc., 174 Ga. App. 478, 330 S.E.2d 414, 1985 Ga. App. LEXIS 1846 (1985). Bailee’s knowledge of automobile contents required for liability. - A bailee for hire as to an automobile is not liable for the contents thereof unless the bailee has actual or implied knowledge or notice as to such contents. Davidson v. Ramsby, 133 Ga. App. 128, 210 S.E.2d 245, 1974 Ga. App. LEXIS 988 (1974). Reasonable expectation of car contents is sufficient notice. - Sufficient notice of the contents of a car exists if the articles are such as the bailee might reasonably expect to be therein. Davidson v. Ramsby, 133 Ga. App. 128, 210 S.E.2d 245, 1974 Ga. App. LEXIS 988 (1974). It is reversible error for trial judge to relieve defendant of this affirmative duty of producing evidence of diligence and to charge the jury in effect that the defendant was under no duty of making any defense until the plaintiff had proved all of the essential facts of its case, including negligence, by evidence. Richter Bros. v. Atlantic Co., 59 Ga. App. 137, 200 S.E. 462, 1938 Ga. App. LEXIS 458 (1938). It is reversible error for the trial judge to relieve the defendant of the duty imposed by O.C.G.A. § 44-12-44, and to so charge the jury as to put the burden of showing negligence on the plaintiff. Elliott v. Levy, 77 Ga. App. 562, 49 S.E.2d 179, 1948 Ga. App. LEXIS 599 (1948); Goodyear Clearwater Mills v. Wheeler, 77 Ga. App. 570, 49 S.E.2d 184, 1948 Ga. App. LEXIS 600 (1948).

RESEARCH REFERENCES Am. Jur. 2d. 8 Am. Jur. 2d, Bailments, §§ 252, 254, 255 et seq. C.J.S. 8 C.J.S., Bailments, § 110 et seq. ALR. Right of bailee by notice or contract to limit care to less than that fixed by statute, 34 A.L.R. 169. Liability of bailee where subject of bailment is stolen, 48 A.L.R. 378. Duty and liability of fair association, or other bailee, as regards articles entrusted to it for exhibition or display, 139 A.L.R. 931. Liability of bailee for hire of automobile for loss of, or damage to, contents, 27 A.L.R.2d 796. Presumption and burden of proof in action for injury to or loss of ship or vessel during bailment or charter, 65 A.L.R.2d 1228. Presumption and burden of proof where

subject of bailment is destroyed or damaged by windstorm or other meteorological phenomena, 43 A.L.R.3d 607. Presumption and burden of proof where subject of bailment is destroyed or damaged by fire, 44 A.L.R.3d 171. Liability of bailee of airplane for damage thereto, 44 A.L.R.3d 862. Liability of operator of marina or boatyard for loss of or injury to pleasure boat left for storage or repair, 44 A.L.R.3d 1332. Liability of owner or operator of parking lot or garage for loss of or damage to contents of parked motor vehicle, 78 A.L.R.3d 1057. Liability of one undertaking to develop or to otherwise process already developed photographic film for its loss or destruction, 6 A.L.R.4th 934. Liability for loss of hat, coat, or other property deposited by customer in place of business, 54 A.L.R.5th 393.