Johnson v. Hardwick, A93A2438

• Decision Date: 11 February 1994
• Docket Number: No. A93A2438,A93A2438
• Citation: 212 Ga.App. 44,441 S.E.2d 450
• Parties: JOHNSON v. HARDWICK.
• Court: Georgia Court of Appeals

Page 450

441 S.E.2d 450

212 Ga.App. 44

JOHNSON v. HARDWICK.

No. A93A2438.

Court of Appeals of Georgia.

Feb. 11, 1994.

Howell W. Ragsdale, Jr., Atlanta, for appellant.

Clifford H. Hardwick, Atlanta, for appellee.

POPE, Chief Judge.

Defendant hired Bud's Benz, a corporation of which plaintiff is owner and CEO, to rebuild the engine of his car. Bud's Benz was unable to complete the work in a timely manner, and plaintiff gave defendant a loaner car to use. While defendant had the car, the windshield was cracked and the right front bumper was damaged. When the defendant returned the car to the Bud's Benz lot after hours, he left a note on it saying "Please let me know how much the repairs cost and I'll pay." Plaintiff obtained an estimate for the repairs in the amount of $3,277.18, but never had the car repaired. He sold the car instead, and he testified that he sold it for approximately $3,500 less than he would have been able to sell it for had it not been damaged. Defendant refused to pay for the estimated cost of the repairs, and plaintiff brought this action. Here, plaintiff appeals from the trial court's grant of summary judgment for defendant on plaintiff's claim for damage to the loaner car.

1. Plaintiff first brought this action on a contract theory based on the note defendant left on the loaner car. Defendant's promise to pay for the repairs was not enforceable because it was not given in return for any consideration. See OCGA § 13-3-40(a). And plaintiff's contention that there was some sort of accord and satisfaction fails for the same reason. See Hall v. Bank South, Washington County, 186 Ga.App. 860, 368 S.E.2d 810 (1988) (accord and satisfaction is unenforceable if unsupported by consideration).

2. After defendant moved for summary judgment with respect to plaintiff's contract claim, plaintiff amended his complaint to add a count seeking recovery for damages to the bailed car resulting from defendant's negligence in his role as bailee. Contrary to defendant's assertion, such a claim was not barred by the passage of time because the applicable limitation period was four rather than two years. See OCGA § 9-3-31. Moreover, when bailed property is damaged while in the possession of a bailee, a presumption of negligence on the part of the bailee arises, and the burden is on the bailee to show proper diligence. Scott v. Purser Truck Sales, 198 Ga.App. 611, 402 S.E.2d 354 (1991); OCGA § 44-12-44. "In order to rebut this evidentiary presumption, the bailee must negate every inference of negligence on its part, as the presumption in itself is sufficient to support a verdict in favor of the bailor, [cits.], and it is only after the bailee has met its burden of proof by showing it exercised the required standard of diligence that the burden of going forward with the evidence shifts back to the bailor, who then has the burden of producing evidence to show negligence on the part of the bailee. [Cit.]" Scott, 198 Ga.App. at 613, 402 S.E.2d 354. The only testimony in the record relevant to this issue is defendant's sworn statement that he was not negligent and the testimony of defendant's son that the windshield crack was caused by a flying rock which could not have been...