Opinion
40752.
DECIDED JUNE 19, 1964.
Breach of bailment contract. Fulton Civil Court. Before Judge Camp.
Paul C. Myers, for plaintiff in error.
Gambrell, Harlan, Russell, Moye Richardson, Robert R. Richardson, contra.
1. The operator of a parking lot is required to exercise ordinary care in the safekeeping and return of the customer's vehicle.
2. (a) The trior of the facts is entitled to consider the conduct of the customer in returning to the parking lot accompanied by another, obtaining the car and leaving, then again returning accompanied by the other person and again parking the car, in determining whether the operator of the lot was in the exercise of ordinary care in delivering the car to the other person who later returned with the parking check stating that the owner was lending the car to him.
(b) The overruling of special demurrers calling for names of the person who claimed the car with the parking check and of the cashier who accepted it was harmless in view of the fact that the information sought by the demurrers was brought out upon the trial, there being no claim of surprise or showing that the demurrant was in any wise less able to proceed with his case.
3. Where a case was tried before a judge without a jury it is presumed that judgment was rendered only upon the competent and legal evidence before him; consequently if illegal evidence was admitted it does not require a new trial.
DECIDED JUNE 19, 1964.
This is a suit against the owner of a parking lot for breach of a bailment contract. Plaintiff, a frequent customer of the defendant, parked in defendant's parking lot a 1961 Chevrolet convertible (alleged value $2,200) having in its trunk various items of personal property such as a guitar, amplifier, various items of clothing and athletic equipment (alleged value $600). Plaintiff received a parking check and went across the street to a pool room to look for a friend. When he came back to the lot, accompanied by one LeBouf, they got the car and drove off, but they came back in about thirty minutes, parked the car again and plaintiff was issued another claim check, after which he and LeBouf went back to the pool parlor. Several hours later plaintiff returned to the lot to get his car. However, LeBouf had already presented the claim check, paid the parking fee and obtained the car, saying that plaintiff was lending it to him. The next plaintiff heard of the car was from police in Virginia, who informed him that it was a total wreck.
The trial court sitting without a jury granted a nonsuit on the personal property claim and found in favor of the defendant as to the car. By direct exception without any motion for new trial, the plaintiff excepts to these judgments, to the admission of certain testimony over objection and to the overruling of numerous demurrers to defendant's answer.
1. The applicable standard of care is provided in Code § 12-403: "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." After proof of his loss by the bailor, the burden of showing ordinary care or proper diligence is on the bailee. Code § 12-104.
Thus the key question in this case is whether, considering all the circumstances, the bailee exercised ordinary care in turning the car over to LeBouf when he presented the claim check. This question was one for the trior of facts, as such questions usually are. Loeb v. Whitton, 77 Ga. App. 753, 755 (3) ( 49 S.E.2d 785). The finding for the defendant was authorized. This ruling controls the direct exception to the finding for the defendant as to the car, the plaintiff's general demurrers to the answer, and special demurrers to the amended answer numbers 2 and 3. The granting of the nonsuit as to the personal property, if error, was harmless since plaintiff was certainly in no better position to recover for this than he was to recover for the car.
2. (a) A number of special demurrers to the amended answer (7, 8, 9) attack an allegation that the loss was not due to defendant's lack of ordinary care but rather was "due to plaintiff's own negligence in failing to keep in his possession and to present the claim check. . ." The discussion above should make it clear that the standard is the parking lot operator's ordinary care rather than the plaintiff's "contributory negligence." However, it is certainly true that the operator's exercise of ordinary care must be evaluated in the light of the plaintiff's conduct. Therefore, since the defendant could have and did go into this "negligence" under other portions of the answer, alleging its proper diligence, the overruling of the special demurrers was harmless. Sheraton Whitehall Corp. v. McConnell, 88 Ga. App. 725, 731 ( 77 S.E.2d 752).
(b) Also harmless was the overruling of special demurrers calling for the names of the person who claimed the car and the cashier who accepted the claim check. First Nat. Bank of Chattanooga v. American Sugar Refining Co., 120 Ga. 717 (1) ( 48 S.E. 326); Lam Amusement Co. v. Waddell, 105 Ga. App. 1, 4 ( 123 S.E.2d 310); Studdard v. Evans, 108 Ga. App. 819, 825 ( 135 S.E.2d 60). The information could have been obtained more effectively by discovery, as is pointed out in Reynolds v. Reynolds, 217 Ga. 234, 246-247 ( 123 S.E.2d 115). No claim of surprise was made, nor was it shown that the demurrant was less able to proceed with the trial of his case either because of lack of the information before the trial began or because of the information itself when it came out upon the trial.
3. The final assignment of error is on the admission over objection of testimony to the effect that plaintiff had let other persons drive his car from the parking lot on other occasions. Initially, we doubt that we can consider this point because a motion for new trial has not been made and the ruling of the court admitting the evidence is not "necessarily controlling." Code § 6-804; see Ga. Procedure and Practice, 604, § 23-34. But, even if the assignment of error is reviewable, the admission of the evidence would not require a new trial because the case was heard by the judge without a jury and he presumptively considered only the relevant and competent evidence. McElroy v. Williams Bros. Motors, 104 Ga. App. 435, 437 ( 121 S.E.2d 917) and citations.
There was no reversible error in the lower court.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.