Cincinnati, New Orleans & Texas Pacific Railway Company v. Hilley

• Decision Date: 16 February 1970
• Docket Number: No. 2,No. 44968,44968,2
• Citation: 121 Ga.App. 196,173 S.E.2d 242
• Court: Georgia Court of Appeals
• Parties: CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY v. J. Q. HILLEY

Page 242

173 S.E.2d 242

121 Ga.App. 196

CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY v. J. Q. HILLEY.

No. 44968.

Court of Appeals of Georgia, Division No. 2.

Feb. 16, 1970.

Syllabus by the Court

1. Where the appellee in this court points out no material inaccuracy or incompleteness of statement in appellant's brief, and makes no additional statement nor cites any additional parts of the transcript, he will be held to have consented to a decision on appellant's statement of the case; and this court will accept appellant's statement as prima facie true and decide the case on the basis of this statement and the evidence cited and quoted in support thereof.

2. (a) A bailor has a right of action against a third-party tortfeasor for damage to the bailed property resulting in injury to his rights of general property or reversion, and the injury occurs at the time of damage to the bailed property. The bailor's action against the wrongdoer is not precluded nor is the amount of damages reduced, by the fact that the bailee, whether gratuitiously or not, may have repaired the property and restored it to its former condition by the time of suit. This is a matter for adjustment between the bailor and bailee and does not affect the grounds or measure of liability of the third-party tortfeasor by whose neglect the property was damaged.

(b) Generally, an owner out of possession, such as a bailor for a term, can only recover against a third-party tortfeasor for an injury done to his reversionary interest or for interference with the availability of the chattel to his possession. However, the rule is different if the bailor is entitled to immediate possession, such as a bailor at will. Where the bailment is not for a term and loss of use of the property results in an injury to the bailor's rather than the bailee's interest, the bailor may recover for loss of use in an action against the third-party tortfeasor.

3. (a) In an appeal from a judgment overruling a motion for new trial, as amended, the enumeration of such judgment as error, without separately enumerating as error each ground of the motion, is a sufficient compliance with Code Ann. § 6-810 where the motion as amended is included in the record and where appellant's brief argues separately each ground insisted upon.

(b) Where a bailment contract is an implied one resting in custom, practice, and a prior course of dealings, evidence as to these matters is admissible to show the existence, nature, and extent of the bailment.

This is the second appearance of this case. See Cincinnati, New Orleans & Texas Pacific Ry. Co. v. Hilley, 118 Ga.App. 293, 163 S.E.2d 438, where we reversed the sustaining of defendant Hilley's res judicata motion.

This litigation involves a collision between plaintiff railroad company's locomotive and defendant's tractor-trailer on the track of the Southern Railway Company while the locomotive was on bailment by Cincinnati, New Orleans & Texas Pacific to Southern. The bailor railroad sues for damages to the locomotive and for loss of its use. At the close of the evidence defendant moved for a directed verdict on the ground that plaintiff had failed to prove it suffered any injury and damage as a result of the collision, and the trial court granted the motion. Plaintiff appeals from the order overruling its motion for new trial as amended, enumerating as error the directing of the verdict and entering judgment for defendant, and the overruling of the motion for new trial as amended.

In Part One of its brief, plaintiff states that the issue in this appeal is whether or not there was any evidence that it had sustained recoverable damages; that there was testimony showing the particular damage to the locomotive and the dollar amounts for materials and labor required to repair it; that these costs were fair and reasonable; that the locomotive was out of service for 96 hours and the fair reasonable charge for an out-of-service locomotive was $10 an hour; that the locomotive had been repaired in Southern's yard, and that there was no charge involved for any supervisory fees or general overhead but that the figures given were for actual expenses of labor and material and the actual rental; that the locomotive was restored to its former condition and returned to service; that the various railroads within the system used locomotives interchangeably, and that the Southern would total up the amount to be paid to another railroad for the use of its locomotive during the month, figured on the percentage of time the locomotive was used. Portions of the transcript are cited in support of this statement of the evidence.

Pittman & Kinney, L. Hugh Kemp, Dalton, for appellant.

No appearance for appellee.

EBERHARDT, Judge.

1. Appellee having failed to point out any material inaccuracy or incompleteness of statement in appellant's brief and having made no additional statement or cited any additional parts of the transcript we accept appellant's statement as prima facie true and decide the case on the basis of the statement and the evidence cited and quoted. Rule 17(b)(1), this court (111 Ga.App. 883, 890; Code Ann. § 24-3617(b)(1)); Veal v. Riner, 214 Ga. 539, 106 S.E.2d 26; Georgia Stainless Steel Corp. v. Bacon, 120 Ga.App. 239, 170 S.E.2d 270.

2 (a) There can be no doubt that a bailor ¹ has a right of action against a third party for damage to the bailed property resulting in injury to his rights of general property or reversion. Code §§ 12-210, 105-1704, 105-1705; Lockhart v. Western & A.R.R., 73 Ga. 472; Southern Bonded Whse. Co. v. Roadway Express Inc., 104 Ga.App. 458(3), 122 S.E.2d 147; 8 Am.Jur.2d Bailments § 252; Restatement (Second), Torts § 220. It was contended in support of defendant's motion for directed verdict, however, that since Southern, the bailee, had repaired the locomotive and restored it to its former condition, plaintiff bailor had suffered no loss or damage.

This contention is without merit. In Harvard Trust Co. v. Racheotes, 337 Mass. 73, 147 N.E.2d 817, 67 A.L.R.2d 596, an insurance company which had become subrogated to the rights of the mortgagee of an automobile sued a third party to recover for damages to the automobile which had been repaired at the expense of the insurance company and the mortgagor. The defendant argued that there was no injury or damage to the mortgagee's interest in the security because the automobile had been restored to its former condition, so that there was no claim to which the insurance company could be subrogated. This contention was rejected, the court holding, under prior decisions (Bell Finance Co. v. Gefter, 337 Mass. 69, 147 N.E.2d 815; Morris Plan Co. v. Hillcrest Farms Dairy, Inc., 323 Mass. 452, 82 N.E.2d 889), that chattel mortgagee and conditional vendors, whether technically bailors or not, had a right of action against a third person whenever a bailor would have one, and reasoning that after the collision the mortgagee had a right to proceed against the third party for damage to its security, it being immaterial that the automobile had been repaired at the time of suit.

Similarly, in Anheuser-Busch, Inc. v. Starley, 28 Cal.2d 347, 170 P.2d 448, 166 A.L.R. 198, the owner of personal property being transported by a carrier sued a third party for damages to the property flowing from a collision between defendant and the carrier. Prior to the action the carrier paid the owner for the damage to the property, and the trial court granted defendant's motion for directed verdict on the ground that the owner had been fully compensated for its loss and that it was not a proper party plaintiff. The Supreme Court of California reversed, holding applicable the 'collateral source rule' (see 22 Am.Jur.2d, Damages § 206) that where a person suffers personal injury or property damage by reason of the wrongful act of another, an action against the wrongdoer for the damages suffered is not precluded nor is the amount of the damages reduced by the receipt of payment for his loss from a source wholly independent of the wrongdoer. Implicit in this holding, of course, is that the bailor's cause of action for injury to its interest accrued at the time of the collision which was not affected by a subsequent payment by the bailee.

In McCoy v. Moore, 185 Okl. 253, 91 P.2d 87, it was held that a bailor was not precluded from bringing an action against a third party tortfeasor because the bailed automobile was repaired at the expense of the bailee, the court stating: 'We think it cannot be questioned that from and immediately after the collision the owner of the automobile acquired a right of action in tort against the (this party).' And see Price-Bass Co. v. Owen, 24 Tenn.App. 474, 146 S.E.2d 149, where it was held that payment by the bailee to the owner for damages to the bailed automobile did not constitute an accord and satisfaction so as to prevent the owner from bringing an action against the third-party tortfeasor. See also Peed v. Burleson's, Inc., 242 N.C. 628, 89 S.E.2d 256, where both bailor and bailee were allowed to sue jointly a third party for conversion, although the bailee had paid the bailor the agreed indemnity for the loss of the shipment.

The decisions in our courts are in harmony with the citedcases. In Raleigh & Gaston R. Co. v. Western & A.R.R., 6 Ga.App. 616, 65 S.E. 586, it was held that a bailee's right of action for injury to property in its possession accrues at the time of the injury. And since '(i)n cases of bailments, where the possession is in the bailee, a trespass committed during the existence of the bailment shall give a right of action to the bailee for the interference with his special property and a concurrent right of action to the bailor for the interference with his general property' (Code § 105-1704), the bailor's right of action for injury to its interest also accrues at the time of injury. This being so, under the 'collateral source rule'...