Elliott v. Levy

I concur in the opinion that the pleadings of the plaintiff in the instant case were not in the alternative and were not subject to the general demurrer; but I can not agree to all that is said in the opinion.

The plaintiff alleges that he delivered his car to the defendant, and gave him the keys thereto, at nine a. m. for the purpose of *Page 567 having it serviced at the service station operated by the defendant; and that he requested that, after performing these services, the defendant should park the car in the service-station parking lot in the space assigned to the plaintiff, for which space the plaintiff paid four dollars per month; and that this was the usual service when the plaintiff bought oil and gasoline. Thereafter, about noon of the same day, the plaintiff called for his keys and went to such parking space and lot where the car should have been if the defendant (who had retained the possession of the car keys) had executed the purposes of the bailment. The defendant at least became a bailee when the car and the keys were delivered to him under such circumstances and he was in the sole possession of the automobile for the purpose of executing the trust. The automobile was not on the lot where the object of the bailment, if carried out in conformity with the purpose of the trust, required it to be parked; and the car could not be found and has never been found. These are such allegations of the delivery of the property by the plaintiff to the defendant for the execution of a special object to be carried out in conformity with the purposes of the trust as meet all the requirements necessary to constitute a bailment. Code, § 12-101. When the petition further alleged a loss of the property, a cause of action was set forth. The defendant as defensive matter may show proper diligence in the execution of such trust. Code § 12-104, provides: "In all cases of bailment after proof of loss, the burden of proof is on the bailee to show proper diligence."

One distinction between the case of Southeastern Fair Assn. v. Ford, 64 Ga. App. 871, and the instant case is that there the defendant never at any time had the exclusive possession of the property even temporarily; whereas, here the exclusive possession was turned over to the defendant for a special object to carry out this object in conformity with the purpose of the trust.