Deloach v. Automatic Transmission & Brake Shop, Inc., 39736
| Decision Date | 26 October 1962 |
| Docket Number | No. 1,No. 39736,39736,1 |
| Citation | 106 Ga.App. 797,128 S.E.2d 512 |
| Court | Georgia Court of Appeals |
| Parties | Mrs. Benson DELOACH v. AUTOMATIC TRANSMISSION & BRAKE SHOP, INC |
Syllabus by the Court.
The trial court has the discretion to determine whether the burden of the evidence has shifted to an opposing party, and where in the exercise of his sound discretion, he determines it has shifted to one who then fails to introduce further evidence to meet this burden, the trial judge may properly direct a verdict against that party.
Plaintiff's suit was brought to recover damages allegedly caused by the negligence of the defendant, which had custody of the plaintiff's automobile for the purpose of repairing it. The petition alleged that the automobile was in the defendant's shop when a fire engulfed it in flames, causing a total loss to plaintiff's car; that the defendant had operated the shop until a late hour immediately preceding the fire; that the fire started in a small room in the shop used as a washing and cleaning room in which there was a vat filled with mineral spirits, equipped with an electric motor, with an agitator attachment, used to clean transmission parts and other auto parts; there were 500 to 600 gallons of mineral spirits located in the room; that the floor of this room was covered with grease and oil, which had been splattered with mineral spirits from the vat; that there were greasy rags on the floor; that the floor of the main shop was covered with grease, oil and mineral spirits; and that the resulting damage was caused by the defendant corporation's negligent acts in certain particulars set forth in the petition.
At the trial plaintiff proved delivery of the automobile to the defendant bailee, that it was damaged, and the amount of the damage.
The witnesses for the plaintiff did not give any evidence proving any act of negligence committed by the defendant.
The defendant's witnesses testified that at night the floors were scrubbed, and all the rags and other things were placed in containers; that in general there was no act of negligence committed by the defendant; and that on the night in question the shop was closed around 8 o'clock. The fire inspector of the City of Savannah had investigated the occurrence at the scene of the fire a few hours after it was extinguished. He had listed the cause of the fire as unknown; he state that he did not discover anything to indicate that any negligence produced the fire; that he was not able to determine where or how the fire originated, and did not know whether it could have been prevented or not.
The jury returned a verdict for the plaintiff, following which the defendant filed a motion for judgment notwithstanding the verdict and a motion for new trial. Both were granted.
In his order granting the motion for judgment notwithstanding the verdict, the trial judge, after summarizing the testimony, concluded that it shifted the burden of proof to the plaintiff since the defendant's evidence was sufficient to overruled the presumption or inference of negligence which was prima facie created by the damage to the property while in possession of the defendant as bailee. The court being of the opinion that the burden of proof was shifted to the plaintiff, since she did not offer any evidence to show negligence of the defendant, the motion for judgment notwithstanding the verdict was granted.
The order granting the motion for new trial decited that the trial court was of the opinion that the verdict was not supported by the evidence and was against the weight of the evidence. To the order granting the motion for judgment notwithstanding the verdict and granting a new trial, the plaintiff excepted.
Thomas Delano Maurice, Savannah, for plaintiff in error.
Bouhan, Lawrence, Williams, Levy & McAlpin, Kirk McAlpin, Frank W. Seiler, Savannah, for defendant in error.
The basic question to be decided is whether the trial court erred in granting the defendant's motion for judgment notwithstanding the verdict. The plaintiff based her action upon Code § 12-104, which provides that in all cases of bailment, after proof of loss, the burden of proof is on the bailee to prove proper diligence. This statute has been applied in several cases and interpreted as meaning that after the bailor proves the bailment and that there was loss to the property bailed, the burden is then placed upon the bailee to show that he exercised proper diligence according to the nature of the bailment. Johnson v. Perkins, 4 Ga.App. 633(1), 635, 62 S.E. 152; and Pickering v. Anderson, 12 Ga.App. 61, 76 S.E. 754. Under the holding in these cases, we feel that the statute established a rule for the shifting of the burden of introducing evidence or of going forward with the...
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... ... Nothing to the contrary was ruled in Deloach v. Automatic Transmission & ... Brake Shop, ... ...
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Ammari v. Sohn
...to in the statute is the burden of introducing evidence or of going forward with the evidence. Deloach v. Automatic Transmission & Brake Shop, 106 Ga.App. 797, 799, 128 S.E.2d 512 (1962). Once the bailee shows the required standard of diligence, "the burden of going forward with the evidenc......
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Rhodes v. Duarte
...which shows negligence on the part of defendant, therefore, under the holding of this court in Deloach v. Automatic Transmission & Brake Shop, Inc., 106 Ga.App. 797, 799, 128 S.E.2d 512, the court erred in denying defendant's motion for judgment notwithstanding the Judgment reversed. BELL, ......