Camp v. T. E. Cline, Inc. Et Al., 141 Ga. App. 328, 233 S.E.2d 280 (1977)
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Summary
Judgment affirmed. Quillian, P. J., and Shulman, J., concur.
Summary
Judgment affirmed. Quillian, P. J., and Shulman, J., concur.
Text
Hirsch, Beil & Partin, John P. Partin, for appellees.Grogan, Jones, Layfield & Swearingen, Milton Jones, for appellant.
Appellant Camp rented a bulldozer at a daily rate from appellee Cline, to be used in Camp's landfill, agreeing to be fully responsible for it. Apparently, a tractor operator, employed by a sand and gravel company owned and operated by Camp and who frequently worked for Camp at the landfill, negligently or deliberately drove the bulldozer into a 10-foot deep, garbage-filled pond of water. Cline sued Camp and the administrator of the estate of the above-mentioned operator for damages for rental of the vehicle and costs of its salvage and repair. Camp appeals from an adverse $14,000 verdict and judgment.
1. The denial of the appellant's motions for directed verdict and for judgment notwithstanding the verdict as to items of damages other than for rental, was not error.
"In all cases of bailment after proof of loss, the burden of proof is on the bailee to show proper diligence." Code 12-104. This presumption of negligence was sufficient to authorize a verdict for the appellee bailor, where the evidence concerning the cause of the damage to the bailed vehicle was insufficient to remove every inference of negligence by the bailee. See Red Cross Laundry v. Tuten,
6. The denial of a motion for mistrial -- based upon the plaintiff's counsel's statement during a colloquy, "that's what [defendant Camp] was getting paid for, some $8,300 a week" -- was not error. Defendant Camp had just given equivocal testimony as to how many days per week his landfill was being operated, saying one time that it was 5 1/2 days, yet another time 7 days for some weeks. While reference to a party's worldly circumstances or financial standing in negligence actions is generally irrelevant and harmful (Usry v. Bostick,
7. A charge on the negligence of an agent being imputable to his principal, was authorized by evidence that the person who drove the bulldozer into the pond was an employee of another company owned and operated by defendant Camp, and that such employee was occasionally directed to work at the landfill, driving heavy machinery (except when he had been drinking).
8. The appellant complains that the charge -- "The engagement or duties of a hirer are to put the thing to no other use than that for which it is hired, to take ordinary care in its use, to redeliver it at the expiration of the bailment as required generally with the terms of the hiring" -- erroneously made him an insurer of the redelivery of the bailed property. The instruction complained of, however, is an almost verbatim quotation from Code 12-203, including the provision therein "to take ordinary care in its use," which excludes the theory of the defendant bailee's being an "insurer."
9. It was not error to refuse to give a requested charge to the effect that the plaintiff could not recover damages for both the cost of repairs made and the diminution of the fair market value, for the reasons given in Division 2 hereinabove. Even though this issue may have been raised by the pleadings, it was properly not charged because it was unsupported by evidence (which the judge had excluded). White v. Hammond,
10. The requested charge on the defendant bailee's duty to use ordinary diligence or care, was substantially covered by the judge's instructions to the jury.
The verdict and judgment were not erroneous for any reason urged.
Nelson C. Coffin, pro se.
1977
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