The only allegation of negligence in the petition is that Rich's Inc. failed to declare the full value of the goods to the express company. It is not alleged that Rich's Inc. was otherwise negligent or that the express company was negligent. It follows that on proof of loss of the goods no presumption arose that the goods were lost because of any negligence other than that alleged; and if the negligence alleged is not sufficient to establish the liability of the bailee, there is no presumption at all from the proof of the loss of the goods. In the absence of special contract, or a usage of trade, or habit of dealing between the parties, a bailee is not under a duty to insure goods entrusted to it. 6 Am. Jur. 320, 321, § 238; Zorn v. Hannah, 106 Ga. 61 (31 S.E. 797). The negligence charged against Rich's Inc. in this case is no more than a failure to insure the goods, for the simple reason that if Rich's Inc. had had transit insurance on the goods, it could not be said to have been negligent in failing to declare their full value to the express company. The declaration of full value and the payment of a higher transportation rate are simply another form of insurance, the premium being paid in the form of additional transportation charges. If Rich's Inc. was under no duty to insure the goods while in its possession, I can see no reason why it was under such a duty while the goods were in possession of an agent it had selected to deliver the goods to their owner. If the president of Rich's Inc. had himself undertaken to deliver the goods, the liability of his company would have depended on whether he exercised ordinary care in the protection of the identical *Page 284 goods, and not on whether the company failed to exercise ordinary care in insuring the goods against loss or obtaining an indemnity agreement from its president to save it and the owner harmless against loss.
I think the majority have misconceived the duty owed by the bailee. I think it was to exercise ordinary care in the safeguarding of the identical property with which it was entrusted, not in protecting its value, apart from the property itself. This suit is in tort, and recovery can be had only on the violation of a duty imposed by law outside of contract. The majority's citation from 55 C. J. 377, in my opinion has not the remotest application to this case. The rule there stated is that where one sells property to another and delivers it by common carrier, the rule that the title passes to the buyer on delivery to the carrier does not apply if the seller sacrifices the buyer's right to indemnity. There was no sale in this case. Neither is the rule quoted from 8 C. J. S. 311, applicable. That rule contemplates that there is a duty on the bailee to deliver the property personally, and instead of doing so he seeks to deliver by common carrier. There is no evidence of a duty to deliver personally in this case. I do not think the decision in the cited case of Rhind v. Stake, supra, is applicable. The pleadings in that case were oral, and it can not be determined whether the action was for breach of contract or in tort. There was an agreement by the bailee to deliver the bailed goods by carrier. The goods were not delivered; and the court simply held that the bailee was not the bailor's agent, and that shipment in the manner described did not relieve the bailee of liability for the non-delivery of the goods. There is another difference between the allegations of the bailor in the cited case and the instant case. In the cited case the allegation was that the goods were lost by reason of the negligence of the bailee. There was no demurrer, and the allegation covered any negligence for which the bailee would have been liable in law. In the instant case there was no general allegation of negligence, but it was merely alleged that the bailee was negligent in failing to declare the full value of the goods, which under the law of Georgia is no negligence at all, under the circumstances of this case. In their brief counsel for the bailor specifically contend that the terms of the bailment were fixed in the memorandum of *Page 285 agreement. If that is true, an action in tort would lie only where the law fixed the same duty as the contract.
I concur in the judgment of reversal, for the reasons given by my colleagues; and I am of the opinion that under the allegations and facts the bailor was not entitled to recover in tort.