Stephens v

Thompson, 177 Ga. App. 528, 339 S.E.2d 784, 1986 Ga. App. LEXIS 1456 (1986). Purpose of transaction determines existence of bailment. — If the furnishing of an automobile is within what may be said to be a “business” of the owner, one to whom the car is entrusted for such purpose is not a bailee, as in a case of lending, but is a servant or agent; if, on the other hand, the car is entrusted by the owner merely as an accommodation, with no interest or concern in the purpose for which the car will be used, then its use, whether for recreation or otherwise, is not within the business of the owner, and the transaction is a mere bailment. Hubert v. Harpe, 181 Ga. 168, 182 S.E. 167, 1935 Ga. LEXIS 52 (1935). Permission to use employer’s truck after working hours creates bailment. — Where the defendant, employed to pick up and deliver dry cleaning and laundry, drives the employer’s truck in doing this work, uses the truck, with the employer’s permission, after the employee finishes work in going to and from home and, where the defendant is to keep the truck in proper repair with the employer paying for such repairs, the status of bailor and bailee exists between the employer and the defendant with reference to the use of the truck by the defendant after the employee finishes work. Smith v. Burks, 89 Ga. App. 278, 79 S.E.2d 52, 1953 Ga. App. LEXIS 949 (1953). Bailment creating liability of employer for tractor carrying trash. — Because an employer, as bailor, sent the employer’s own employee with the thing bailed, a tractor with attached trash trailer, under O.C.G.A. § 44-12-62(b), a contractor, as the hirer, was liable only for the consequences of the hirer’s own directions or for the hirer’s gross negligence; the trial court erred in concluding that the 180 44-12-40 contractor was entitled to summary judgment on the basis that the employee was not a borrowed servant because the evidence presented at least a factual issue regarding whether the employee was the contractor’s borrowed servant since there was evidence that the contractor alone supervised the employee’s work hauling debris, that the contractor controlled the employee’s schedule for each day, and that the contractor dictated which landfill would receive the debris and when a load was ready. Coe v. Carroll & Carroll, Inc., 308 Ga. App. 777, 709 S.E.2d 324, 2011 Ga. App. LEXIS 280 (2011), cert. denied, No. S11C1159, 2011 Ga. LEXIS 836 (Ga. Oct. 17, 2011). Bailment when contract for car storage in garage. — Where the owner of an automobile enters into an oral contract, for the storage of a car, with the operator of a storage and service garage of automobiles, the relationship of bailorbailee is created. Bunn v. Broadway Parking Ctr., Inc., 116 Ga. App. 85, 156 S.E.2d 464, 1967 Ga. App. LEXIS 709 (1967). Acceptance of car for repairs and adjustments. — Where a driver hired by plaintiff took plaintiff’s car, on orders from plaintiff, to defendant’s garage and delivered it to the master mechanic to make repairs and adjustments, and where the master mechanic worked on the car and asked the driver to test-drive the car, along with the master mechanic, the existence of bailor and bailee relationship between the parties is established. Tyner & Blackmon v. Fryer Truck & Tractor Co., 83 Ga. App. 393, 63 S.E.2d 695, 1951 Ga. App. LEXIS 873 (1951). Bailment denied where owner retains right to remove stored article at will without the knowledge of the person in charge of the premises and no bailment arises. Mossie v. Pilgrim Self-Service Storage, 150 Ga. App. 715, 258 S.E.2d 548, 1979 Ga. App. LEXIS 2352 (1979). Leaving of musical equipment in restaurant. — Evidence could have authorized jury to find that bailment was in effect as to plaintiff’s musical equipment left at defendant’s restaurant and damaged in fire occurring when restaurant was closed. Buckley v. Colorado Mining Co., 163 Ga. App. 431, 294 S.E.2d 665, 1982 Ga. App. LEXIS 2520 (1982). No bailment created between insured and insurer. — Court of appeals did not err in affirming an order granting an insured summary judgment in the insured’s action against an insurer to recover indemnity under the insured’s commercial general liability insurance policy for property damage to a company’s commercial peanut cleaner because the care, custody, and control exclusion of the policy did not apply when the peanut cleaner was not in the insured’s care, custody, or control; it could not be said either that a bailment of the peanut cleaner was created or that the insured had exclusive “care, custody, or control” of the cleaner at the time that the cleaner was damaged because the insured was operating as an instrumentality of the company, moving the company’s peanut cleaner to serve the company’s purposes while under the company’s direction and control. Owners Ins. Co. v. Smith Mech. Contrs., Inc., 285 Ga. 807, 683 S.E.2d 599, 2009 Ga. LEXIS 485 (2009). Unpublished decision: When the debtor was granted bare legal title to a residential loan package for purposes of resale as a bailment under O.C.G.A. § 44-12-40, but had no equitable interest in the loan, the loan was not property of the debtor’s estate under 11 U.S.C. § 541(d), and the creditor’s interest was not avoidable under 11 U.S.C. § 544(a)(1). HSBC Mortg. Servs. v. Pettigrew (In re Southstar Funding, LLC), No. 07-65842-PWB, No. 0706524, 2008 Bankr. LEXIS 3883 (Bankr. N.D. Ga. Oct. 4, 2008). Duty of Care Borrower of loan is bound to take good care of thing borrowed, to use it according to the intention of the lender, and to restore it in the proper condition. Industrial Lumber Co. v. Strickland, 71 Ga. App. 298, 30 S.E.2d 792, 1944 Ga. App. LEXIS 341 (1944). Bailee to act in good faith. — A bailee is an agent who is required not only to use the property for the special object only for which the bailee was entrusted with it, and in conformity with the pur- 181 Duty of Care (Cont’d) poses of the trust, but to act in good faith where the interests of the principal are concerned. Industrial Lumber Co. v. Strickland, 71 Ga. App. 298, 30 S.E.2d 792, 1944 Ga. App. LEXIS 341 (1944). Object of bailment mutually beneficial to both parties. — Where the object of the bailment is beneficial to both parties, the degree of diligence required of the bailee is ordinary care. Elliott v. Levy, 77 Ga. App. 562, 49 S.E.2d 179, 1948 Ga. App. LEXIS 599 (1948). Bailor entrusting defective automobile to another. — Where bailor entrusts a defective automobile to another, or entrusts an automobile to an incompetent driver, the bailor must exercise ordinary care to prevent injuries to persons within the range of foreseeable operation of the automobile. Medlock v. Barfield, 90 Ga. App. 759, 84 S.E.2d 113, 1954 Ga. App. LEXIS 806 (1954). Liability 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. 44-12-40 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). Bailor’s liability determined by bailment contract and doctrine of proximate cause. — The bailor’s liability is not determined alone by the provisions and warranties of the bailment contract, but also by the limits imposed by the doctrine of proximate cause; that is, whether the defendant should have foreseen the consequences of defendant’s negligence as a natural and probable result. Medlock v. Barfield, 90 Ga. App. 759, 84 S.E.2d 113, 1954 Ga. App. LEXIS 806 (1954). Automobile dealer not liable for prospective purchaser’s negligent operation of car. — Since the relationship between an automobile dealer and a prospective purchaser is that of bailor and bailee, the dealer is not liable for injuries accruing to a third person by reason of the negligent operation of the automobile by the prospective purchaser while trying it out. Harris v. Whitehall Chevrolet Co., 55 Ga. App. 130, 189 S.E. 392, 1936 Ga. App. LEXIS 441 (1936).