GA Code § 44-12-43 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 12 - Rights in Personalty|Article 3 - Bailments|Part 1 - In General|§ 44-12-43. Care Required of Bailees

 All bailees are required to exercise care and diligence to protect the thing bailed and to keep it safe. Different degrees of diligence are required according to the nature of the bailments.   (Orig. Code 1863, § 2033; Code 1868, § 2034; Code 1873, § 2060; Code 1882, § 2060; Civil Code 1895, § 2897; Civil Code 1910, § 3470; Code 1933, § 12-103.)   Cross references.   - Placement of risk of loss where goods are held by bailee for delivery under contract of sale, § 11-2-509.   JUDICIAL DECISIONS    Nothing in O.C.G.A. T. 11 repeals or affects O.C.G.A. § 44-12-43. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578, 149 S.E.2d 255 (1966).    Whether a bailment exists depends upon the relationship between the owner of the property and the possessor of the property as to the disposition of the property. Bohannon v. State, 251 Ga. App. 771, 555 S.E.2d 112 (2001).    Loan is bailment of article for certain time, to be used by the borrower without paying for its use. Industrial Lumber Co. v. Strickland, 71 Ga. App. 298, 30 S.E.2d 792 (1944).   Bailor entitled to election of remedies.    - A bailor, setting up a breach of the duty of the bailee, may elect as to the bailor's remedy and may rely upon either his right under the contract or proceed for damages as in a case of tort. AAA Parking, Inc. v. Black, 110 Ga. App. 554, 139 S.E.2d 437 (1964).   "Safekeeping" construed.    - The word "safekeeping" in an agreement for storage of goods in a warehouse does not imply a much higher degree of care than the law requires of a defendant nor does the word imply a guarantee against damage or harm. Harper Whse., Inc. v. Henry Chanin Corp., 102 Ga. App. 489, 116 S.E.2d 641 (1960).   Standard of care.    - If the bailment is for the exclusive benefit of the bailor, only slight diligence is required; if the bailment is for the mutual benefit of the parties, ordinary diligence is required; and if the bailment is for the exclusive benefit of the bailee, extraordinary diligence is required. Gooden v. Day's Inn, 196 Ga. App. 324, 395 S.E.2d 876 (1990).    The degree of negligence required to impose liability upon a bailee is generally a question of law to be determined by the court. Gooden v. Day's Inn, 196 Ga. App. 324, 395 S.E.2d 876 (1990).    Borrower is bound to take good care of thing borrowed, to use it according to the intention of the lender, and to restore it at the proper condition. Industrial Lumber Co. v. Strickland, 71 Ga. App. 298, 30 S.E.2d 792 (1944).    Bailee in mutual benefit bailment is not insurer of bailed property, in the absence of clear contractual provisions to the contrary. Gillham v. Federal Express Money Order, Inc., 112 Ga. App. 171, 144 S.E.2d 557 (1965).   Ordinary diligence required of bailee in mutual benefit bailment.    - Where the object of the bailment is beneficial to both parties, the degree of diligence required of the bailee is ordinary care. Elliott v. Levy, 77 Ga. App. 562, 49 S.E.2d 179 (1948); Goodyear Clearwater Mills v. Wheeler, 77 Ga. App. 570, 49 S.E.2d 184 (1948); Gillham v. Federal Express Money Order, Inc., 112 Ga. App. 171, 144 S.E.2d 557 (1965); Skinner v. Humble Oil & Ref. Co., 145 Ga. App. 372, 243 S.E.2d 732 (1978).    A borrower, where the bailment is for the mutual benefit of both the bailor and bailee, is bound to exercise ordinary care and diligence in regard to the article borrowed. Warren v. Mitchell Motors, Inc., 52 Ga. App. 58, 182 S.E. 205 (1935).   Extraordinary care and diligence required if borrower benefits entirely.    - In a loan entirely for the benefit of the borrower, the borrower is usually bound to exercise extraordinary care and diligence, and is liable for slight neglect concerning the thing borrowed; if a loan is for the joint benefit of the lender and the borrower, the responsibility of the borrower is varied and less stringent, according to the circumstances and purposes of the loan. Warren v. Mitchell Motors, Inc., 52 Ga. App. 58, 182 S.E. 205 (1935).    Presumption of negligence arises, if alleged, where possession is shown in the bailee at the time of damage to the property. United States Sec. Whse., Inc. v. Brooks, 115 Ga. App. 834, 156 S.E.2d 217 (1967); Scott v. Purser Truck Sales, Inc., 198 Ga. App. 611, 402 S.E.2d 354 (1991).    Mere showing of loss or injury will entitle bailor to recover unless this showing is offset by evidence adduced by the bailee. Bailey v. Insurance Co. of N. Am., 80 Ga. App. 521, 56 S.E.2d 848 (1949).    Loss of property after its delivery to another authorizes an inference that the loss was occasioned by negligence of the person receiving it. Elliott v. Levy, 77 Ga. App. 562, 49 S.E.2d 179 (1948).    Bailee may overcome prima facie case made out on the part of the bailor by proving affirmatively that the bailee exercised that degree of care which the bailment called for, or that the loss or injury was due to causes in no way connected with the lack of proper care on the bailee's part. Bailey v. Insurance Co. of N. Am., 80 Ga. App. 521, 56 S.E.2d 848 (1949).    A bailee, who has exercised the proper degree of care and diligence in protecting and keeping safely the thing that is bailed, is relieved from any liability for its loss or destruction. Gillham v. Federal Express Money Order, Inc., 112 Ga. App. 171, 144 S.E.2d 557 (1965).   Bailee not liable for unintentional invasion of bailor's interest with third persons.    - A bailee who is negligent with respect to bailed goods is not liable for the unintentional invasion of the interest of the bailor in the bailor's contractual or employment relationships with third persons. Morse v. Piedmont Hotel Co., 110 Ga. App. 509, 139 S.E.2d 133 (1964).    Exercise of required diligence is matter of defensive pleading and proof by bailee where the failure of the bailee to use the required degree of care is in issue; it is not a matter for allegation and proof by the bailor. A.A.A. Parking, Inc. v. Bigger, 113 Ga. App. 578, 149 S.E.2d 255 (1966).   Only slight diligence required by hotel in holding jewelry.    - Because the hotel gratuitously agreed to store the guest's jewelry when the guest refused to allow the jewelry to be mailed to the guest, the hotel was only required to show slight diligence for purposes of the bailment claim. Jordan v. Marriott International, Inc., 346 Ga. App. 706, 816 S.E.2d 822 (2018).   Jury determines questions of diligence and negligence.    - Ordinarily in bailment all questions of diligence and negligence are questions of fact for determination by the jury. Loeb v. Whitton, 77 Ga. App. 753, 49 S.E.2d 785 (1948); Gillham v. Federal Express Money Order, Inc., 112 Ga. App. 171, 144 S.E.2d 557 (1965).    Cited in Morris Storage & Transf. Co. v. Wilkes, 1 Ga. App. 751, 58 S.E. 232 (1907); Hall & Ham v. Stone, 11 Ga. App. 269, 75 S.E. 140 (1912); Pickering v. Anderson, 12 Ga. App. 61, 76 S.E. 754 (1912); Park v. Swann, 20 Ga. App. 39, 92 S.E. 398 (1917); Richter v. Atlantic Co., 65 Ga. App. 605, 16 S.E.2d 259 (1941); Smith v. Burks, 89 Ga. App. 278, 79 S.E.2d 52 (1953); Buena Vista Loan & Sav. Bank v. Bickerstaff, 121 Ga. App. 470, 174 S.E.2d 219 (1970); Kamensky v. Southern Oxygen Supply Co., 127 Ga. App. 343, 193 S.E.2d 164 (1972); Knox Jewelry Co. v. Cincinnati Ins. Co., 130 Ga. App. 519, 203 S.E.2d 739 (1974); Northside Motors, Inc. v. O'Berry, 167 Ga. App. 155, 305 S.E.2d 894 (1983); Citizens Jewelry Co. v. Walker, 178 Ga. App. 897, 345 S.E.2d 106 (1986); South Ga. Pecan Co. v. Alimenta Processing Corp., 195 Ga. App. 688, 394 S.E.2d 545 (1990).   RESEARCH REFERENCES   Am. Jur. 2d.   - 8 Am. Jur. 2d, Bailments, §§ 83 et seq., Carriers et seq.   C.J.S.   - 8 C.J.S., Bailments, § 46 et seq.   ALR.    - Liability of a bailee of money who commingles it with his own funds, 20 A.L.R. 378.    Law of general average as affected by fact that necessity for sacrifice or expenditure was due to negligent navigation, 25 A.L.R. 154.    Imputing negligence of bailee to bailor where subject of bailment is damaged by third person, 30 A.L.R. 1248.    Duty and liability of farm tenant in respect to livestock leased with farm, 32 A.L.R. 857.    Right of bailee by notice or contract to limit care to less than that fixed by statute, 34 A.L.R. 169.    Rights and liability of bailee where there is an adverse hostile title, 43 A.L.R. 149.    Liability of bailee where subject of bailment is stolen, 48 A.L.R. 378.    Relation between customer and broker receiving bonds or other securities for sale or exchange, 52 A.L.R. 501.    Liability of bailee for damage to or destruction of subject of bailment by servant acting for his own purposes or in violation of his instructions, 52 A.L.R. 711.    Liability of carrier or other bailee because of misinformation as to time or place of arrival or storage of goods, 56 A.L.R. 1382.    Duty and liability of gratuitous bailee or mandatory bailee, 96 A.L.R. 909.    Liability for loss of or damage to automobile left in parking lot, 131 A.L.R. 1175; 7 A.L.R.3d 927; 13 A.L.R.4th 362; 13 A.L.R.4th 442.    Duty and liability of fair association, or other bailee, as regards articles entrusted to it for exhibition or display, 139 A.L.R. 931.    Bailee's express agreement to return property, or to return it in a specified condition, as enlarging his common-law liability, 150 A.L.R. 269.   Liability of attorney for loss of client's money or personal property in his possession or entrusted to him, 26 A.L.R.2d 1340.   Liability of bailee for hire of automobile for loss of, or damage to, contents, 27 A.L.R.2d 796.   Stockyard operator's liability for injury to or death of stock, 40 A.L.R.2d 988.   Liability of garageman for theft or unauthorized use of motor vehicle, 43 A.L.R.2d 403.   Presumption and burden of proof in action for injury to or loss of ship or vessel during bailment or charter, 65 A.L.R.2d 1228.   Bailee's duty to insure bailed property, 28 A.L.R.3d 513.   Sufficiency of warehouseman's precautions to protect goods against fire, 42 A.L.R.3d 908.   Liability of bailee of airplane for damage thereto, 44 A.L.R.3d 862.   Liability of operator of marina or boatyard for loss of or injury to pleasure boat left for storage or repair, 44 A.L.R.3d 1332.   Liability of savings bank for payment to person presenting lost or stolen passbook or savings account card, 68 A.L.R.3d 1080.   Liability of owner or operator of parking lot or garage for loss of or damage to contents of parked motor vehicle, 78 A.L.R.3d 1057.   Bailee's liability for bailor's expense of recovering stolen subject of bailment, 80 A.L.R.3d 264.   Liability of owner of motor vehicle for negligence of garageman or mechanic, 8 A.L.R.4th 265.   Liability for loss of hat, coat, or other property deposited by customer in place of business, 54 A.L.R.5th 393.