Jones v. Milner, 25128.

• Decision Date: 27 April 1936
• Docket Number: No. 25128.,25128.
• Citation: 53 Ga.App. 304,185 S.E. 586
• Parties: JONES. v. MILNER.
• Court: Georgia Court of Appeals

53 Ga.App. 304

185 S.E. 586

JONES.

v.MILNER.

No. 25128.

Court of Appeals of Georgia, Division No. 2.

April 27, 1936.

Syllabus by the Court.

An infant bailee of a borrowed automobile is not liable for damages to the automobile caused by his reckless driving at a speed exceeding 45 miles an hour, in the absence of an allegation either that he departed from the object of the bailment or that he intentionally caused the damage.

Error from Municipal Court of Atlanta, Appellate Division.

Action by Willis J. Milner, Jr., next friend, etc., against Winfield M. Jones. To review a judgment of the Appellate Division of the Municipal Court of Atlanta affirming a judgment for the plaintiff, the defendant brings error.

Reversed.

Winfield P. Jones and Carroll Payne Jones, both of Atlanta, for plaintiff in error.

James E. Jackson, Jr., of Atlanta, for defendant in error.

SUTTON, Judge.

An action was brought in the municipal court of Atlanta against the minor bailee of an automobile wrecked by the bailee while driving at an alleged speed of more than 45 miles per hour. The petition alleged in substance that Russell Berg was the owner of an automobile subject to the balance of the purchase price due to Willis J. Milner, III; that W. M. Jones, a minor, borrowed the automobile from Berg, it being expressly agreed between Berg and Jones that the latter was to use it for the purpose of attending a dance, and that he was to have exclusive use, custody, and control of the automobile until it was returned to Berg, and that no one except Jones was to drive or otherwise have any custody or control of said car; that Jones, while driving the car at a speed exceeding 45 miles an hour, lost control of the car, struck a telephone pole, and demolished the car; that he could not control the car at such a speed; and that this high and reckless speed was the cause of the accident to and destruction of the car; and that the damages to the car, valued at $125, was $110.

The defendant filed general and special demurrers to the plaintiff's petition, which were overruled by the court, and the defendant filed exceptions pendente lite to the judgment overruling the demurrers, and assigned as error the court's refusal to dismiss the case on the ground that the petition set forth no cause of action.

The defendant also filed his general denial of the allegations of the plaintiff's petition as well as his plea of infancy.

The case was tried without a jury, and the judge, after hearing evidence, gave a judgment in favor of the plaintiff in the sum of $40. Defendant made a motion for new trial on the general grounds. To the order overruling his motion he excepted and assigned the same as error.

Thereafter, within the required time, the defendant tendered his bill of exceptions to the appellate division of the municipal court of Atlanta, wherein he excepted to the aforesaid judgment overruling his motion for new trial, and assigned the same as error on the general grounds, and assigned error on his exceptions pendente lite to the overruling of his demurrers to the plaintiff's petition.

In his bill of exceptions to the Court of Appeals, the defendant excepts to the judgment of the appellate division of the municipal court of Atlanta affirming the judgment of the trial court, and assigns the same as error; and also assigns error on his exceptions pendente lite to the overruling of his demurrers.

The petition was subject to the general demurrer because it showed on its face that the defendant bailee was an infant and did not contain an allegation either that he departed from the object of the bailment or that his damaging the automobile was intentional.

The question here raised by the general demurrer to the petition apparently has never been passed on by either this courtor the Supreme Court of this state. The case of Malone v. Robinson, 77 Ga. 719, is cited and relied on by the defendant in error. In that case a livery stable man, who hired a horse and buggy to the defendant to drive from Carrollton to Buchanan, a distance of 20 miles, recovered from the defendant for the value of the horse which died as a result of the gross negligence of the defendant in driving the horse, not only the said 20 miles, which was over rough, hilly roads, in about two hours, but also, after resting a little, in driving on to a mill about five miles distant, and thence to defendant's mother's, a distance of 4 or 5 miles. The judgment of the trial court was affirmed. But that case differs from the case at bar in two material respects, viz., it does not appear that the bailee in that case was an infant, and it does appear that in that case the bailee used the horse for a purpose other than that for which it was hired by driving about 9 or 10 miles beyond Buchanan.

Numerous cases involving the question of the liability of an infant bailee for his torts arising out of or connected with his contract of bailment have been decided by the courts of various foreign states. See 33 Am.Dec. 180, note, and People v. Kendall, 25 Wend. (N.Y.) 399, 37 Am.Dec. 240 and note; 31 C.J. 1091, 1092, §§ 205, 206. Such decisions, while not binding on this court, will be considered by this court as persuasive authority, in the absence of a controlling precedent by either this court or the Supreme Court of this state.

In Towne v. Wiley, 23 Vt. 355, 56 Am. Dec. 85, it was held that an infant bailee is liable for conversion when he departs from the object of the bailment, although, so long as he keeps within its terms, his infancy is a protection. That case involved an action on the case, in trover, for the conversion of a horse. The defendant, an infant of 20 years, hired a horse from the plaintiffs, who were livery stable keepers, to go 23 miles to Battleborough and back the same day. He went there and returned by a circuitous route, nearly doubling the distance. At about 8 o'clock in the evening he went to a house in Westminister, and remained until 4 o'clock the next morning he went to a house in Westminster, the horse was exposed during the whole night without shelter or covering of any kind. The horse died within a few days. The court said in part:

"The cases upon the subject of the liability of infants, for torts, when viewed with reference to their facts, may not seem altogether consistent; but when the principle, upon...