Southeastern Fair Asso. v. Ford

Broyles, C. J. G. E. Ford filed in the civil court of Fulton *872 County an action for damages against the Southeastern Fair Association. The petition alleged that the damages resulted from the theft by unknown persons of the plaintiffs automobile while it was parked in the defendant’s parking lot at its fair grounds. The defendant’s plea to the jurisdiction of the court was stricken, and the demurrers to the amendment were overruled. On the trial the court, without the intervention of a jury, rendered a judgment for $220 in favor of the plaintiff, and the defendant’s motion for new trial was overruled. In the bill of exceptions these judgments are assigned as error. The plea to the jurisdiction was based on the alleged ground that the court did not have jurisdiction of the subject-matter of the suit, for the reason that the plaintiff was suing for “personal damages.” The plea was properly stricken. The court has jurisdiction in actions seeking recovery of damages caused by injury to personal property, but it has no jurisdiction of suits based upon injuries to the person or to a person’s reputation. The controlling question is whether the relationship of bailor and bailee existed between the parties. It is well settled that the relationship of bailor and bailee does not exist unless there is such a delivery of the property that the alleged bailee acquires an. independent and temporarily exclusive possession thereof, and unless there is an actual change of legal as well as physical possession of the property from the bailor to the bailee, “by virtue of which the bailee is entitled to maintain an action of trover or trespass against one who interferes with his possession, or who negligently destroys the property while in his custody.” Atlantic Coast Line R. Co. v. Baker, 118 Ga. 809 (45 S. E. 673). In Dilberto v. Harris, 95 Ga. 571 (23 S. E. 112), cited in behalf of the plaintiff (and where Bleckley, C. J., entered a strong dissent), the facts were quite different from those in the Balcer case and in this case. Moreover, in Wall v. State, 75 Ga. 474 (where the facts were different from those in Dilberto v. Harris, supra, and from the facts in the instant case, but where the principle of bailments was identical), and the court held that no bailment existed. If there is -any conflict between the decisions in the Dilberto and the Wall cases, the latter, being the older adjudication, is controlling. Numerous Georgia decisions have held .that where the operator of an automobile drives it into a regular parking station or lot operated for *873 profit, and where an attendant thereof takes physical ánd legal possession of the car and gives to its operator an identifying card which the operator has to return to the attendant before he can regain possession of his car, the relationship of bailor and bailee exists between the parties. But those eases are clearly differentiated from this ease. In each of those eases the driver of the car had temporarily relinquished its physical and legal possession to the parking-lot attendant, and the latter had the exclusive right of possession, even against the owner or driver of the car, until the identifying card had been returned. In the instant case the undisputed evidence showed, that before entering the defendant’s parking lot the plaintiff paid twenty-five cents for a ticket which allowed him to park his car there; that there was nothing on the ticket to identify it as the ticket bought by the plaintiff or to identify his car; that he drove his car into the parking lot, his ticket was taken up by an employee of the defendant, and the plaintiff parked his car at a place designated by another of the defendant’s employees; that no employee of the defendant took physical possession of the car or even touched it; that the plaintiff locked the switch, but not the door, of the car; that he then bought a ticket for fifty cents and entered the fair grounds proper through a gate; that when he returned several hours later, about 9:30 o’clock at night, his car had been stolen; that no identifying tag was given to the plaintiff by the defendant or any of its agents; and that the plaintiff had the right, and could have exercised it at any time and without any notice to the defendant, to re-enter his car and drive it out of the parking lot. In several cases from other States, where the facts were almost identical with those of this case, the appellate courts held that the relationship of bailor and bailee did not exist between the parties. Thompson v. Mobile Light &c. Co., 211 Ala. 525 (101 So. 177, 34 A. L. R. 921); Lord v. Oklahoma State Fair Asso., 95 Okla. 294 (219 Pac. 713, 34 A. L. R. 927); Suits v. Electric Park Amusement Co., 213 Mo. App. 275 (249 S. W. 656). While the facts of those eases are not on "all fours” with the instant case, there is no material difference affecting the question of bailment. For instance, in the Thompson case the owner of the car, when he parked it, was given a ticket which stated that "no responsibility for lost or stolen property is assumed.” But the Alabama court held, in *874 effect, that the giving of such a ticket had no bearing on the question of a bailment, but was pertinent only on the question whether there was an implied contract between the parties for the defendant to maintain a watch against the theft of the plaintiff’s car. While those foreign decisions are not controlling on this court, they are persuasive, and we think that they correctly state the law applicable to the facts of this case. We hold that the demurrers to the petition and the amendment were properly overruled; but in our opinion the judgment awarding damages was not authorized by the evidence, and the refusal to grant a new trial was error. Judgment reversed. MacIntyre, J., concurs specially. Gardner, J., dissents.