O.C.G.A. § 44-12-77 (2019)

Annotations

JUDICIAL DECISIONS Nothing in O.C.G.A. Title 11 repeals or affects O.C.G.A. § 44-12-77. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578, 149 S.E.2d 255, 1966 Ga. App. LEXIS 1141 (1966). Effect of O.C.G.A. § 44-12-77. - O.C.G.A. § 44-12-77 does not purport to preempt the type of arrangement which the parties may agree upon; its effect is simply to provide what the relationship will be when there has been no contract otherwise. Brown v. Five Points Parking Ctr., 121 Ga. App. 819, 175 S.E.2d 901, 1970 Ga. App. LEXIS 1372 (1970). Automobile as subject matter of bailment. - An automobile is just as capable of being the subject matter of a bailment as any other property where the facts and circumstances show or authorize an inference that the relationship of bailor and bailee exists between the parties concerned. Goodyear Clearwater Mills v. Wheeler, 77 Ga. App. 570, 49 S.E.2d 184, 1948 Ga. App. LEXIS 600 (1948). Bailment is created when the owner of an automobile leaves the key with the operator of the garage or parking lot, or is required to do so absent a contract creating some different relationship. Brown v. Five Points Parking Ctr., 121 Ga. App. 819, 175 S.E.2d 901, 1970 Ga. App. LEXIS 1372 (1970). Where an automobile owner enters into an oral contract with the operator of a garage to store and service the owner’s car for consideration, the relationship of bailor-bailee is created. Bunn v. Broadway Parking Ctr., Inc., 116 Ga. App. 85, 156 S.E.2d 464, 1967 Ga. App. LEXIS 709 (1967). A bailment arose when an automobile owner’s car was towed to a service station owner’s facility for repair, and the station

owner proved no viable defense to potential liability simply by showing that, after the car had been entrusted to that facility, the owner then entrusted it to another repair facility. Engram v. Sonny Campbell’s Gulf, Inc., 200 Ga. App. 40, 406 S.E.2d 551, 1991 Ga. App. LEXIS 751 (1991). 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). Duty of care begins with delivery of property to bailee. - The duty upon the bailee to exercise care and diligence in protecting and keeping safely the thing bailed begins with the delivery of the property to the bailee and continues until the object of the bailment has been carried out in conformity with the purpose of the trust. Loeb v. Whitton, 77 Ga. App. 753, 49 S.E.2d 785, 1948 Ga. App. LEXIS 635 (1948). Car destroyed by fire in garage. - In all cases of bailment, after proof of loss, the burden of proof is on the bailee to show proper diligence. Therefore, when the car was delivered to a bailee who held the car for hire, and in a suit by the bailor it is pleaded that because of the negligence of the bailee the property so delivered has been destroyed by fire, upon proof of the allegations laid in the petition the onus is placed upon the bailee of showing that he exercised due care and diligence in protecting and keeping the property. Hight Accessory Place v. Lam, 26 Ga. App. 163, 105 S.E. 872, 1921 Ga. App. LEXIS 42 (1921). Knowledge or notice of automobile’s contents required for liability thereof. - 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); White v. Atlanta Parking Serv. Co., 139 Ga. App. 243, 228 S.E.2d 156, 1976 Ga. App. LEXIS 1756, cert. denied, 238 Ga. 18, 231 S.E.2d 73, 1976 Ga. LEXIS 1076 (1976). Sufficient notice exists if the contents of an automobile 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); White v. Atlanta Parking Serv. Co., 139 Ga. App. 243, 228 S.E.2d 156, 1976 Ga. App. LEXIS 1756, cert. denied, 238 Ga. 18, 231 S.E.2d 73, 1976 Ga. LEXIS 1076 (1976). Inference of negligence. - Loss of property after its delivery to another authorizes an inference that its loss was occasioned by the negligence of the person receiving it. Goodyear Clearwater Mills v. Wheeler, 77 Ga. App. 570, 49 S.E.2d 184, 1948 Ga. App. LEXIS 600 (1948). Burden is on bailee to show bailed article was not injured by bailee’s negligence, and that bailee used ordinary care and diligence to protect the property from damage or injury. National Bank v. Cut Rate Auto Serv., Inc., 133 Ga. App. 635, 211 S.E.2d 895, 1974 Ga. App. LEXIS 1157 (1974). 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 parking lot, in the absence of clear and satisfactory proof showing diligence on the operator’s part throughout the bailment. Loeb v. Whitton, 77 Ga. App. 753, 49 S.E.2d 785, 1948 Ga. App. LEXIS 635 (1948). An open-air parking lot is a garage and therefore a bailee of the vehicles

parked at its facility. Park ’N Go of Ga., Inc. v. United States Fid. & Guar. Co., 266 Ga. 787, 471 S.E.2d 500, 1996 Ga. LEXIS 357 (1996). Effect of posting sign indicating “insured garage.” - If the bailor can neither limit nor relieve self of personal responsibility by the posting of a sign because the sign does not become a part of the contract, the bailor should not be held to increased liability for posting a sign to the effect that bailor’s garage is an “insured garage.” Brown v. Five Points Parking Ctr., 121 Ga. App. 819, 175 S.E.2d 901, 1970 Ga. App. LEXIS 1372 (1970). Safety measures for meeting duty of care and diligence. - A parking lot operator should provide a sufficient number of attendants to diligently keep watch over all the cars on an open lot at all hours, have the lot enclosed in such a manner that a small number of employees can with reasonable safety keep the cars from being stolen, require that all cars be locked or that the keys be kept in an office or other place of safety, or adopt other safety measures reasonably and fairly sufficient to meet the duty as to care and diligence established by O.C.G.A. § 4412-77. Loeb v. Whitton, 77 Ga. App. 753, 49 S.E.2d 785, 1948 Ga. App. LEXIS 635 (1948). Diminution of property value authorized award. - Evidence authorized the finding that, apart from failing to perform its obligation under the contract, the truck rebuilding company had breached a duty imposed by law not to cause the diminution of the truck’s value; thus, because the company’s breach of its duty to safe-keep the truck gave rise to a separate cause of action for conversion, there was no error in awarding additional damages for the loss of value to the truck. 4WD Parts Ctr., Inc. v. Mackendrick, 260 Ga. App. 340, 579 S.E.2d 772, 2003 Ga. App. LEXIS 367 (2003).

RESEARCH REFERENCES Am. Jur. Pleading and Practice Forms. 12B Am. Jur. Pleading and Practice Forms, Garages and Filling and Parking Stations, § 3.

ALR. Liability of owner for storage of, or services in connection with, automobile, under authority, actual or assumed, of public officials, 36 A.L.R. 955; 50 A.L.R. 1309.

Duty and liability of garage keeper to owner of cars, 42 A.L.R. 135; 65 A.L.R. 431. Liability of owner to indemnify garage keeper against damages to third persons, 44 A.L.R. 1183. Validity of public regulations as to garages, 84 A.L.R. 1147. Liability for loss of or damage to automobile left in parking lot, 131 A.L.R. 1175; 7 A.L.R.3d 927; 13 A.L.R.4th 362; 13 A.L.R.4th 442. Measure and elements of damages recoverable against bailee of automobile in case of loss or theft, 135 A.L.R. 1198. Liability of garageman, service or repair station, or filling station operator for destruction or damage of motor vehicle by fire, 16 A.L.R.2d 799. Liability of bailee for hire of automobile for loss of, or damage to, contents, 27 A.L.R.2d 796. Liability of garageman for theft or unauthorized use of motor vehicle, 43 A.L.R.2d 403.

T.44, C.12, A.3, P.3

Liability of garageman to one ordering repair of motor vehicle, for defective work, 92 A.L.R.2d 1408; 1 A.L.R.4th 347; 23 A.L.R.4th 274. Liability insurance of garages, motor vehicle repair shops and sales agencies, and the like, 93 A.L.R.2d 1047. Liability of hotel, motel, or similar establishment for damage to or loss of guest’s automobile left on premises, 52 A.L.R.3d 433. 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. Measure and elements of damages in action against garageman based on failure to properly perform repair or service on motor vehicle, 1 A.L.R.4th 347. Liability of owner of motor vehicle for negligence of garageman or mechanic, 8 A.L.R.4th 265.