DECIDED MARCH 1, 1951.
Action for damages; from Meriwether Superior Court — Judge Boykin. August 21, 1950.
George C. Kennedy, for plaintiff.
Swift, Pease, Davidson Chapman, for defendant.
Where, in an action for damages for an alleged breach of a contract of bailment, the evidence is in sharp conflict as to the existence of the relationship of bailor and bailee between the plaintiff and the defendant at the time the property allegedly bailed was damaged, it is error for the trial court to direct a verdict.
DECIDED MARCH 1, 1951.
Tyner and Blackmon, a partnership composed of L. D. Tyner and M. E. Blackmon, brought an action, for an alleged breach of a contract of bailment, against Fryer Truck and Tractor Company, a partnership composed of R. C. Fryer and R. C. Fryer III. The material allegations of the petition were substantially as follows: The plaintiff, on December 3, 1948, delivered its funeral car by its driver, Bruce Gilbert, to the defendant for repairs; the car was a 1941 model Cadillac; the defendant through its agents, servants, and employees made certain repairs and adjustments to the car; and Cecil Edwards, an agent, servant and employee of the defendant was the mechanic who was making the repairs and the adjustments to the car. After having made the repairs and while the car was still in the possession of the defendant for repairs, Cecil Edwards, the defendant's mechanic, obtained the services of Bruce Gilbert (the plaintiff's driver) to drive the car while he (Edwards) made further tests of the same; Gilbert was not at the time the agent or servant of the plaintiff, and was not authorized by the plaintiff to drive the car for the purpose of testing it, as this was a part of the work for which the plaintiff had contracted with the defendant for the defendant to perform. Edwards (the defendant's employee) accompanied Gilbert and was directing him in the operation of the car. Edwards directed Gilbert to increase the speed of the car, and Gilbert did so in accordance with Edwards' direction and drove the car in excess of fifty-five miles per hour, at which time the injury and damage to the car occurred. The car was driven around a curve in the highway at a high and dangerous speed without reducing the speed or bringing the car under immediate control as was required, under the circumstances, in the exercise of ordinary care and diligence. The highway upon which the car was being driven was paved, and, at the time in question, was wet. The car skidded on the curve, left the highway, and overturned. The defendant's agents, servants, and employees, at the time of the injury and damage to the car, were not driving in a reasonable and prudent manner and did not exercise ordinary care and diligence in the testing and operation of the car. The car had not been delivered into the possession of the plaintiff at the time of the injury and damage, but was still in the possession of, and under the direction of, the defendant.
The defendant filed its answer, in which it admitted that Edwards was its agent, servant, and employee, and admitted the physical circumstances of the injury and damage to the car, but denied any liability. Insofar as the record reveals, no demurrers were filed to the petition. Upon the trial of the case, the following material evidence was introduced: Bruce Gilbert testified for the plaintiff: "During the year 1948 I was employed by Tyner and Blackmon. On December 3, 1948, I took one of their funeral cars to the defendant's shop for repairs. I took the funeral car out to their garage to have them work on it and turned it over to the master mechanic to make repairs and adjustments. He worked on it and asked me to drive the car out and test it. I drove and he listened to see what was wrong. I drove out on the road and he asked me to speed up. He was leaning over to listen at the motor. He asked me to speed it up. I speeded up. We run across the road and back to the left [of?] the road and the car wrecked. The car turned over. I was driving the car at his direction. He was the mechanic and he told me to speed it up. I was employed by Tyner and Blackmon from the first of January 1948 until the first of April 1949 when I went to school. I was not discharged. I took the car where Mr. Tyner directed me. He ordered me to take the car out there. I was ordered by the man in charge, Mr. Tyner's father. I was the operator of the funeral car at that time but at the time it was wrecked I was under the instruction of the mechanic. I don't know how long it took to make the repairs. After he made the adjustments he asked me to speed the car up. I don't know how many times he asked me to speed up. He asked me to get in the car and drive it. I was inside the garage at the time that he was making the adjustments. I was driving the car at the time it left the garage. He told me to get out on the highway. I was out on the highway driving the car. That is what he told me to do. He said, `Speed it up.' He didn't tell me to slow down, just told me to speed up. He told me to speed up going down by the store. We were going up the hill and he told me to speed it up. I had a speedometer on the car. I don't know how fast we were going when he told me to speed it up. I don't know whether I looked at it or not. The object of having the repairs made was because the car didn't have any power to it. It wouldn't pick up. We had had trouble with it and it had to be adjusted. My purpose in taking it to the garage was to have it fixed. I was doing exactly what he told me, carrying out the mechanic's instructions. If he had told me to drive a hundred miles an hour I would have done so. He told me to speed up, according to his directions. I don't know what speed I was going when to told me to speed up. I didn't try to pass a truck. I don't remember any statement made by Cecil Edwards, the mechanic, about going back just before the wreck. I don't remember that Cecil Edwards told me at the time we were driving out the highway. Mr. Edwards was leaning over listening to the motor."
M. E. Blackmon testified for the plaintiff: ". . Mr. Bruce Gilbert was employed by my firm at the time of the wreck . ."
R. C. Fryer testified for the defendant: ". . Cecil Edwards was employed [by the defendant] in December 1948. He was shop foreman. I employed him. He was not authorized to hire or fire anyone. I know Bruce Gilbert. He has never been working for me at anytime. Cecil Edwards did not have the authority to hire Bruce Gilbert at anytime. He did not have authority to hire anybody. Cecil Edwards worked at my garage. I didn't tell him how to fix cars. He looked after the repairing. He did not have the right to hire assistants to help him in his work."
R. C. Fryer III, the other partner of the defendant partnership, merely corroborated what had been said by R. C. Fryer.
Cecil Edwards testified for the defendant: ". . I was employed by the defendants in this case in December 1948. I was employed as shop foreman. I remember Bruce Gilbert brought Tyner and Blackmon's funeral car to the shop for repairs. I adjusted the carburetor at that time. The driver took the car and drove it, Mr. Gilbert. He asked me to ride with him. I did not have any supervision over the car or give any direction after I got in the car. I did not tell the driver anything or give him any directions as to how to drive. I did not tell him to speed up or slow down. I did not tell the driver instructions whatsoever in connection with the operation of that car. I went with my customer around towards Tew's store. I told Gilbert I would like to get back. I had several cars in the shop. I told him to turn around the corner, I wanted to go back to the shop. I [He] told me he was going all the way around the store. I [He] was making about sixty or sixty-five when I [he] got out there and passed a truck. I did not ever tell him to speed up. He said it was running better than it had been running. I don't remember any further conversation. I passed a truck. He ran around the car. He didn't slow down. He was on the inside, met another truck, he got over and right there he ran off of the pavement. The car turned over several times when he ran off the pavement. Mr. Gilbert was driving the car. It took me approximately ten minutes to get through with the repairs and he took the car. I did not take over the control or supervision of that car at any time. Bruce Gilbert was in charge of it. I concluded my job and he suggested that I ride with him. Most customers ask me to ride with them in the car. I went with him. I made the adjustments and turned the car back to Mr. Gilbert. I turned it over to him. I wouldn't say it's customary to road test a car after these adjustments. The complaint in reference to this car was that it wasn't running right. The carburetor needed adjustments. It was not necessarily necessary for me to take the car out and try it. I told Mr. Gilbert to turn around and go back. I had several customers waiting for me to fix their cars and he kept going. He didn't turn around for me."
After the foregoing evidence had been introduced and both sides had rested, the court directed a verdict for the defendant. The plaintiff made a motion for a new trial, based upon the usual general grounds and five special grounds, all of which assign error on the direction of the verdict. The motion was overruled, and the plaintiff excepted.
The controlling question in this case is whether the relationship of bailor and bailee existed between the plaintiff and the defendant at the time the plaintiff's funeral car was wrecked and damaged. "A bailment is a delivery of goods or property for the execution of a special object, beneficial to the bailor or bailee, or both; and upon a contract, express or implied, to carry out this object and dispose of the property in conformity with the purpose of the trust." Code, § 12-101. Bruce Gilbert, a driver for the plaintiff, testified: "I took the funeral car [upon order from the plaintiff] out to their [the defendant's] garage and turned it over [delivered it] to the master mechanic to make repairs and adjustments. He [the master mechanic] worked on it and asked me to drive the car out and test it. I drove and he listened to see what was wrong." Nothing more appearing, this evidence alone established the existence of the relationship of bailor and bailee between the parties. The defendant was a bailee for hire. The plaintiff delivered the funeral car to the defendant for the purpose of having the defendant make the necessary repairs upon it. The defendant's master mechanic accepted delivery of the car and began the repairs for which the plaintiff was at least impliedly obligated to pay. The defendant's engagement was to make the repairs and redeliver the funeral car to the plaintiff, or its agent, upon completion of the work. Code, § 12-203; Parker Motor Co. v. Spiegal, 33 Ga. App. 795 ( 127 S.E. 797). We take it that counsel for the defendant does not contend that, at this point of time in the chronology of the transaction between the plaintiff and the defendant, the relationship of bailor and bailee did not exist, upon the ground that the defendant's possession of the automobile was not exclusive; for, nothing more appearing, when the mechanic began the repairs and bestowing his labor thereon, the defendant had a lien on the car such that its possession of it was exclusive even against the owner. Code, § 12-710; Frost Motor Co. v. Pierce, 72 Ga. App. 447, 451 ( 33 S.E.2d 910). The question narrows, therefore, to whether or not the bailor-bailee relationship between the plaintiff and the defendant had terminated at the time of the wreck, and there is not a question of whether the relationship of bailor and bailee ever existed between the plaintiff and the defendant. Bruce Gilbert, the plaintiff's driver, so far as appears from the evidence, was not sent by the plaintiff to assist in any manner in making the repairs. The repair work was the special object of the bailment and the engagement of the defendant. It does not appear that Gilbert's services as a driver constituted any part of the bailment, nor does it appear from the evidence that the bailment in this case was of the nature of that contemplated by Code § 12-203, which provides: "If the bailor sends his own agents with the thing bailed, as a driver for his horse, then the hirer is bound either to the bailor or to third persons, only for the consequences of his own directions and for gross neglect." This Code section contemplates those instances where the contract of hire includes the services of a servant or agent of the owner of the property, and such servant or agent remains in the immediate control of the property, subject to the orders of the hirer; and, in a strict sense, the bailor-bailee relationship arises between the hirer and the owner only when the hirer, by his orders, assumes immediate control of the property, as, for example, where one hires a team to perform certain work and the owner sends his own driver. Weller Co. v. Camp, 169 Ala. 275 ( 52 So. 929).
In the instant case, the bailment had either terminated by the mechanic's delivery of the property to the plaintiff's driver, and the mechanic was performing a voluntary service to the driver and the plaintiff in riding with the driver, or the mechanic had not completed the repairs, had not redelivered the funeral car to the driver Gilbert, and, whether he had authority to do so or not, had enlisted Gilbert's aid as an individual to assist him, in checking the effectiveness of his repairs and determining whether further adjustments were necessary to be made, by driving the car. Upon each of these points the evidence was in sharp conflict, and the court should have left it for the jury to determine, under proper instructions, whether in fact the relationship of bailor and bailee still existed between the plaintiff and the defendant. If in fact the bailor-bailee relationship still existed, and the mechanic enlisted Gilbert's aid to drive the car while he checked his work or made further adjustments, the jury would have been authorized to find that Gilbert drove the car in pursuance of the defendant's business and not as the agent or employee of the plaintiff; and, under such circumstances, it would have been a question for the jury whether the mechanic was in the exercise of ordinary care in directing Gilbert's driving at the time and place in question. It follows that the trial court erred in directing the verdict for the defendant and in overruling the motion for a new trial.
Judgment reversed. Gardner and Townsend, JJ., concur.