Opinion
36817.
DECIDED SEPTEMBER 27, 1957.
Action for damages. Before Judge Etheridge. Fulton Civil Court. June 13, 1957.
Thomas J. Long, Ben Weinberg, Jr., for plaintiff in error.
Henry B. Troutman, Jr., Harold C. McKenzie, Jr., contra.
The court erred in denying the motion for a judgment notwithstanding the verdict.
DECIDED SEPTEMBER 27, 1957.
Grady Motors sued the Henry Grady Hotel Corporation and the Atlanta Parking Service, Inc., for damages allegedly caused by the joint negligence of the defendants. The material portions of the petition as amended are as follows: "3. Petitioner, by and through one of its officers and agents, loaned Mr. C. L. Connell one 1955 Oldsmobile 88 sedan to make a business trip to Atlanta on March 31, 1955. 4. Mr. Connell drove petitioner's automobile to the front entrance of the Henry Grady Hotel on Peachtree Street on said date and requested that the doorman, one Ulysses Burke, that the automobile be placed in a parking lot. 5. Ulysses Burke, an employee of the Henry Grady Hotel Corporation and an agent for the Atlanta Parking Service, Inc., gave to Mr. Connell a stub of a ticket, No. 7934, which ticket was issued by the Atlanta Parking Service, Inc., and the said Burke was given the keys to the automobile by Mr. Connell. The said Burke was an agent of the Henry Grady Hotel Corporation and was acting within the scope of his authority and employment of the hotel in giving to Mr. Connell the ticket for the parking service. 6. Ulysses Burke was acting within the scope of his employment and as agent for the Atlanta Parking Service, Inc., at the time he assumed the responsibility and control of petitioner's automobile. The said Ulysses Burke was acting within the scope of his employment of the Henry Grady Hotel Corporation and as the duly authorized agent of the hotel in assuming responsibility and control of the automobile of Grady Motors. 7. Mr. Connell was informed later in the day that the automobile had been wrecked on the way to the parking lot, and Mr. Connell immediately notified the plaintiff. 10. The defendants are jointly and severally liable to the plaintiff for the damage to its automobile. That the said Ulysses Burke was acting within the scope of his employment of the Henry Grady Hotel as well as the Atlanta Parking Service as agent when he accepted the automobile and thereby acted on the authority of both defendants in said case."
Service was not perfected against the Atlanta Parking Service, Inc., and the case went to trial only as against Henry Grady Hotel Corporation.
At the close of the evidence the defendant moved for a directed verdict which motion the court denied. The jury returned a verdict for the plaintiff. The defendant moved for a judgment notwithstanding the verdict, which motion was denied, and the defendant excepts.
Harvey Watts testified that he was superintendent of service for the defendant and as such had charge of all services in the defendant's hotel; that on March 31, 1955, the defendant had in its employ as doorman a Ulysses Burke; that his duties consisted of loading and unloading baggage from guests' cars; that he also had the duty of seeing that such cars were parked; that if an attendant of the Atlanta Parking Service, Inc., was present when a guest arrived, such attendant would take the keys from the guest and himself issue a parking check to the guest; that if no attendant of the parking service was present upon a guest's arrival, the doorman would take the guest's car keys and issue a parking check and would wait until a parking service attendant came and turned the keys over to such attendant to have the car stored; that the hotel's doorman had the authority to receive a guest's car keys and issue a parking check in the event a parking service attendant was not present on the scene when a guest arrived; that he had instructed Ulysses Burke not to deliver the keys to a guest's car to anyone other than an authorized agent of the parking service; that generally upon calling for his car a guest would present his claim check to a bellboy and the bellboy would call the parking service to deliver the car to the hotel and that the guest would pay the parking service attendant the required storage fee; that if a guest so requested, the hotel would add the charges of the parking service to the hotel bill, collect the same, and turn the money over to the parking service.
Clarence Redding, witness for the plaintiff, testified that on the morning of March 1, 1955, he went to the Henry Grady Hotel for the purpose of getting a job with the Atlanta Parking Service; that he had called the manager of the parking service about the job and had been instructed to come down and talk to the manager concerning the job; that he had gotten the keys to the plaintiff's automobile from a parking attendant of the Atlanta Parking Service, Inc., and not from the doorman, Ulysses Burke; that in taking the automobile to the parking service garage he had a collision. Redding further testified by denying that he made the statement after the collision that he had gotten the keys to the automobile from the doorman, Burke, and that Burke had instructed him upon giving him the keys to take the car down to the parking service's garage.
An attorney for the plaintiff, after claiming entrapment, testified that after the collision, Clarence Redding told him that he had gone to the Henry Grady Hotel to see a friend of his, Ulysses Burke, the doorman, to see if he could get a job at the hotel and that Burke told Redding that no job was available at the hotel but that he might try the parking service and that Burke told Redding, "There's a car right there that's just come in. There's no one here from the parking service. Why don't you take that on down to see Mr. Claude at the parking service"; that Redding further told the witness that he then got in the car and was taking it to the parking service garage when the collision occurred.
Introduced in evidence was the parking check which had been issued to Mr. Connell. The parking check read as follows: "7934 Atlanta Parking Service, Inc. 114 Ivy St. NE. Phone LA 9780 `Henry Grady Hotel Company is not responsible for loss or damages to cars or their contents.'"
It was stipulated that Ulysses Burke was an employee of the defendant, that some gentleman, assumed to be a Mr. Connell, gave the keys to the car in question to Ulysses Burke and that he received from Burke a ticket of the Atlanta Parking Service, Inc.
In the absence of demurrers to the petition, it is to be reasonably construed in favor of the plaintiff as alleging that Mr. Connell was impliedly authorized by the owner of the automobile to do the acts he is alleged to have done; that Connell entered into a contract of bailment with Henry Grady Hotel, the terms of which were that the possession of the automobile was delivered to the hotel for the purpose of being delivered to an independent bailee, the Atlanta Parking Service, Inc., either by having the automobile driven by an agent of the hotel to the Atlanta Parking Service, Inc.'s place of business or by delivering the possession of the automobile to an agent of Atlanta Parking Service, Inc., at the front of the hotel where it was placed by Mr. Connell. To be construed as setting forth a cause of action, the petition must also be construed to allege that the automobile was in contemplation of law in the possession of an agent or employee of the hotel at the time it was damaged and for the purpose of the consideration of this case only, the petition is so construed. Attention is directed at the allegation that Mr. Connell received a parking ticket showing the party with which the bailment agreement for the storage of the automobile was made by the hotel and there is not the slightest intimation that any representative of the hotel held the parking garage out as belonging to the hotel or used by it for parking customers' cars as an incident of hotel service or that the hotel chose an unreliable or irresponsible party to store the car. With these observations as premises, we turn to the question whether the evidence supported the allegations of the petition, express or implied. We conclude that the evidence was not sufficient to authorize a verdict for the plaintiff for the reason that it did not authorize a finding that in contemplation of law the automobile was in the actual or constructive possession of the hotel at the time it was damaged. The plaintiff undertook to offer such proof but the witness by whose testimony the fact was sought to be established testified that the keys to the automobile were delivered to him by an employee of the Atlanta Parking Service, Inc., and not by the hotel doorman. If the jury believed this testimony, the hotel was exonerated because the testimony showed that possession of the automobile had passed from the hotel to the Atlanta Parking Service, Inc., and the hotel's responsibility had ceased. An attorney for the plaintiff sought to impeach the plaintiff's own witness, entrapment having been claimed, by showing prior contradictory statements. If the impeachment attempt was successful, the effect was to eliminate the testimony of the witness Clarence Redding from the case in which event the plaintiff's evidence was devoid of testimony showing that the automobile was in the possession of the hotel, in contemplation of law, when it was damaged, so as to give rise to a presumption of negligence on the part of the hotel. The declarations of Clarence Redding out of court are not substantive evidence of what they affirm. Watts v. Starr, 86 Ga. 392 ( 12 S.E. 585); Central R. Bkg. Co. v. Maltsby, 90 Ga. 630 ( 16 S.E. 953); Luke v. Cannon, 4 Ga. App. 538 ( 62 S.E. 110); Green v. State, 95 Ga. 463 ( 22 S.E. 289); Jones v. Harrell, 110 Ga. 373 ( 35 S.E. 690); Ga. R. Bkg. Co. v. Andrews, 125 Ga. 85 ( 54 S.E. 76); Perdue v. State, 126 Ga. 112 ( 54 S.E. 820); Stallings v. Southern Ry. Co., 140 Ga. 55 ( 78 S.E. 421).
The defendant in error contends that it made out a prima facie case by showing possession of the automobile in the hotel and damage and that the burden of showing ordinary care was on the hotel. This contention is fallacious for the reason that in this case the automobile was bailed to the hotel for the purpose of being in turn bailed by the hotel. In such case proof of possession in the hotel does not raise a presumption that damage to the automobile occurred while it was in the hotel's possession. A presumption of negligence arises, if alleged, where possession is shown in the bailee at the time of damage to the property. Millender v. Looper, 86 Ga. App. 430 ( 71 S.E.2d 724). The rationale of putting the burden of showing diligence on the bailee after loss or damage is shown while the property is in the possession of the bailee is that the bailee alone is in position to know the facts and circumstances surrounding the loss or damage and that most often it would be impossible for an owner or legal possessor of property to prove negligence on the part of a bailee. The defendant in error argues that the exclusive possession required to be shown in the bailee does not mean actual possession and argues that possession by a thief or unauthorized person would be exclusive possession by a bailee. That is true. The possession which must be shown by a bailor on the part of the bailee is not necessarily actual possession but the possession and control which in law place upon the bailee the duty to care for the property, among other things, as against theft and unauthorized possession. The possession by a thief or other unauthorized person, obtained from the bailee, would be prima facie the possession of the bailee. There is no such evidence here. In this case two bailees were in contemplation of the contracting parties and before the plaintiff could recover it was necessary for it to prove which one had possession at the time of the damage as there was no presumption that the hotel did not deliver possession of the automobile to the Atlanta Parking Service, Inc. The rule that there is a presumption of the continuance of a proved state of facts, if such could ever apply to such a temporary existence, could not apply in this case when the contract contemplated bringing the temporary possession of the hotel to an almost sudden end.
The evidence failed to show that the automobile was damaged while it was in the possession of the hotel either actually or under such circumstances as the law would treat as possession, such as the delivery of the automobile to a person not an employee of the hotel and one not authorized by Atlanta Parking Service, Inc., to receive it; consequently, since there was no presumption that the hotel was negligent in damaging the automobile and since there was no evidence to the effect that an agent or employee of the hotel negligently damaged it while in the hotel's possession, the court erred in denying the hotel's motion for a judgment notwithstanding the verdict and direction is given that judgment be entered in accordance with such motion.
Judgment reversed with direction. Felton, C. J., and Nichols, J., concur.