Ford brought an action to recover of the Southeastern Fair Association damages arising from the theft of his automobile from the parking grounds of the defendant, and alleged as the cause of the loss certain acts of negligence of the defendant. The defendant filed its plea to the jurisdiction, and general and special demurrers to the petition, which plea and demurrers the court overruled. To these judgments the defendant filed exceptions pendente lite. The trial resulted in a judgment for the plaintiff, and the defendant filed its motion for new trial on the general grounds, and its amendment setting up special grounds, which motion as amended the court overruled. Exceptions are to the orders of the court overruling the plea, the demurrers, and the motion for new trial.
1. I specially concur in the ruling that under the allegations of the petition the civil court of Fulton County had jurisdiction. "Civil Court of Fulton County" is merely a new name for the Municipal Court of Atlanta (Ga. L. 1939, p. 449), and the act creating the municipal court (Ga. L. 1913, pp. 145, 158, § 26) provides that it shall have "jurisdiction to try and dispose of all civil cases [save where exclusive jurisdiction rests with other courts] of whatever nature, except injuries to the person or the reputation." The injuries alleged as the basis of recovery do not fall within the classification excepted.
2. I specially concur with the majority in the opinion that the *Page 876 court did not err in overruling the demurrers, but for the reasons hereinafter assigned. The petition alleged substantially, that the plaintiff and his wife visited the fair of the defendant; that the plaintiff paid as entrance fees fifty cents each for himself and his wife, and twenty-five cents "for the storing and parking of his automobile for safe-keeping while he and his wife were visiting the fair exhibits;" that he parked his automobile "at a place inside the fair grounds where he was directed to park same by the defendant;" that "he locked his automobile before leaving same;" that when he later returned (after such time as had been required to visit the exhibits and otherwise attend the fair) to the place "where he had parked his automobile upon the direction of defendant, . . his automobile had been stolen;" and that he notified the defendant that his automobile had been stolen. The negligence alleged was that the defendant failed to enclose properly the grounds, and did not provide the proper guards or watchmen to prevent the theft of his car; and that due to such negligence the defendant failed in the exercise of ordinary care to protect his automobile and prevent it from being taken from its possession, when it had led the plaintiff to believe, under its acts of taking possession of the car and directing its parking and placement, that the car would be safe from theft. A fuller exposition of the petition is unnecessary.
The demurrers raise but one material issue, that of bailment. I think this question is controlled in principle by the rulings in Dilberto v. Harris, 95 Ga. 571 (supra), and Keene v. Lumbermen's Mutual Insurance Co.,60 Ga. App. 864, 867 (5 S.E.2d 379). "A bailment is a delivery of goods or property for the execution of a special object, beneficial either 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. It was ruled in Atlantic Coast LineRailroad Co. v. Baker, 118 Ga. 809 (supra), that "In order to create a bailment the bailee must have an independent and exclusive possession of the property." The allegations show a delivery of the property to the defendant on a contract of entrance of the car, beneficial both to the plaintiff and defendant, the immediate benefit to the defendant being the sum of twenty-five cents, and to the plaintiff the placement of the car on the fair grounds where he might *Page 877 leave it and attend the exhibits and other attractions, and then return for it for his departure from the grounds. The allegations show further that the plaintiff, on entering, remained momentarily in manual possession of the car, but, without choice or option,drove it and parked it under the control and at the direction of the defendant, and at a location on the grounds of the defendant as directed by the defendant; and that then he left it locked, and went to attend the fair for such period of time, long or short, as might be necessary for all purposes for which he had paid the fees for himself and wife. It is clear that during the time the plaintiff was driving and parking his car under the direction of the defendant the car was not in the independent and exclusive possession of the defendant and it is equally clear that the car would not have been in the defendant's independent and exclusive possession during the time of driving off the grounds. The question is, was the car in the independent and exclusive possession of the defendant during the time the plaintiff was away attending the fair and its attractions? If it was, the possession of the defendant was a bailment for hire, and the defendant was required to exercise "care and diligence in protecting and keeping" it "safely" (Code, § 12-103), the degree of care being as for a bailment for hire.
The court held in Dilberto v. Harris, supra: "The proprietor of a barber-shop kept for public patronage is liable to a customer for the value of his hat, which was deposited on a hatrack, in the shop and which, while the customer was being shaved, disappeared from the shop and was thus lost, such proprietor being, under these facts, a bailee for hire as to the customer's hat." Though the evidence was conflicting as to whether the plaintiff or the defendant's porter placed the hat on the hatrack, it was certain that the hat was placed on the rack in the barber-shop where all customers customarily placed their hats, and that the plaintiff then was shaved. It must be assumed that the court was fully cognizant of the law of bailments for hire, that the possession of the property must be in the independent and exclusive possession of the alleged bailee. It is clear that the effect of the decision was that while the hat was on the rack along with hats of other customers, and while the plaintiff was being shaved, the hat during that period of time was in the independent and exclusive possession of the barber, notwithstanding the hat may have been but a few feet distant from the plaintiff, *Page 878 and notwithstanding there was no contractual inhibition to the plaintiff recovering his hat at will, unaided, from the rack after the shave. Under these principles it appears that the possession of the car in the instant case was that of a bailee for hire. While the defendant's agents did not take manual control of the car and park it, the defendant nevertheless absolutely controlled and directed the parking of it in its "shop" or grounds; and, in analogy to the period of time the customer was "away" being shaved, the plaintiff was "away" during the time indicated, seeing the fair. It was not indicated as important (the decision being silent in this respect) that to perfect the bailment for hire it had been necessary that the proprietor alone recover the hat from the rack for his customer, but that if the customer himself took it from the rack he thereby defeated the bailment. The fact that the plaintiff in the instant case had the right to recover his car from its location where parked, without first getting permission instanter from the defendant or without first taking manual delivery from the defendant. I think immaterial to defeat the bailment for hire. While a bailment for hire may be the more readily evidenced when the proprietor of a parking lot issues a ticket and retains a stub, and thereafter requires the presentation of the ticket before his manual surrender of the possession of the car to the customer, such requirement does not alone determine the existence of the bailment. A bailment may exist without such delivery. Keene v.Lumbermen's Mutual Insurance Co., supra. I think such requirement, when used, goes more to the proper execution of the bailment than necessarily to its existence.
Moreover, the instant case on its facts is more strongly that of a bailment for hire than was Dilberto v. Harris on its facts. In the Dilberto case no fee, as such, was paid for the deposit of the hat. In the instant case a fee of twenty-five cents was paid for entrance of the car for parking. The necessity for depositing the hat (unless the customer came bareheaded) was interrelated to the procuring of the shave, in that such "accommodation" went to the promotion of the business. I think that likewise it was in the financial interest of the defendant, in promoting attendance on its fair, to provide (except as to those who walked) a parking space for the automobiles of its customers, notwithstanding it charged extra therefor. The converse of independence and exclusiveness *Page 879 of possession of the property in the alleged bailee would be seen had the plaintiff been permitted to drive his car at will over the fair grounds, from which, parked or moving, he could have better seen the fair. No such permission obtained; the only permission which it may be inferred from the allegations the plaintiff had was (1) to park the car where directed, and (2) to drive it directly out when leaving the grounds. The fact that the car was left locked by the plaintiff would not of itself determine or defeat the existence of the bailment. Independence and exclusiveness of possession is not necessarily dependent on the right of the bailee freely to move the property about. A bailment may be of that which is fixed when placed in the possession of the alleged bailee, as well as that which is readily movable. There is no conflict in these rulings with those in Wall v. State, 75 Ga. 474. The fact that the defendant's business was not one which was operated the year round makes no difference. When the plaintiff left the car and went to see the exhibits, he did not temporarily abandon his car as if he had parked it on the street, but he left it in the physical possession of the defendant. I think the plaintiff was buying something more than space (which might have been plentifully obtained within convenient walking distance of the fair grounds, and without charge, and withoutprotection of a bailee). I think he was purchasing all the benefits of a bailment for hire. "Where a fair association provided parking space for cars and charged for the same, held, that the association occupied the position of bailee." Chattanooga Interstate Fair Association v. Benton, 5 Tenn. App. 480. The case just cited and the instant case are largely identical on the facts, save that in the Benton case it was alleged and proved that an agent assured the bailor that his car would be taken care of, and that the fair association would be responsible for it. But such assurance would not be a sine qua non to the establishment of a bailment. The assurance would be no more than the law already required. While such assurance might be the better indicative of the intention of the alleged bailee to assume independent and exclusive possession, the absence of such assurance would not in itself defeat a bailment otherwise established. The ruling of the Benton case, not being qualified as resting upon the necessity of such assurance of care, I think is persuasive to the extent that a fair association, under the allegations and facts of the instant case, is a bailee for hire. *Page 880
3. I dissent from the ruling in the majority opinion that the judgment was not authorized by the evidence. In addition to substantiating the allegations, the evidence more fully showed that a certain portion of the fair ground was given over to the parking of cars, into which the plaintiff first entered by buying a ticket for the car, then driving forward about thirty feet, when his ticket was collected and the employees of the defendant started directing and controlling the movements of the plaintiff to the point of parking; and that upon leaving the car the plaintiff bought tickets for himself and his wife and entered the fair ground proper, which was separated by a fence from the parking section.