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Action on bailment contract. Chatham Superior Court. Before Judge Harrison.
Where the petition alleged that the defendant had possession of an automobile truck under a "bailment lease" contract providing for the payment by the defendant of a stipulated monthly rental for 36 months with an option to the defendant to purchase the truck at the expiration of the lease for one dollar; that during the term of the lease and while the truck was in the possession of the defendant it was destroyed by fire; and that the defendant bailee had failed to pay the monthly rental due since the destruction of the truck, and where the petition sought to recover only the amount of rent due for the remainder of the lease term plus the option purchase price of one dollar, it was insufficient to state a cause of action as against a general demurrer since none of the damages sought were recoverable.
Dearing Leasing Company sued Harmon, Inc. alleging that it was assignee of a lease contract entered into between Dearing Chevrolet Company and the defendant, wherein Dearing Chevrolet leased to the defendant a described motor truck for a period of 36 months at a stated monthly rental with the option to the defendant at the expiration of the lease to purchase the truck for one dollar. The petition alleged that on November 8, 1960, while the lease agreement was in full force and effect, the motor truck which was the subject of the lease "was heavily damaged and practically destroyed by fire," the origin of which was unknown to the petitioner while said truck was at or upon defendant's place of business in the City of Savannah, Georgia; that the nature and extent of the damage to the motor vehicle was unknown to plaintiff but well known to defendant; that said motor vehicle had a fair market value immediately prior to its destruction in excess of $1,750, and only a salvage value after the fire, which plaintiff alleges on information and belief was less than $100. Plaintiff further alleged that the cost of the repairs to the truck which would have been required in order to restore it would have exceeded its fair market value. The petition alleged that the injury and damage to the plaintiff by reason of the failure of the defendant to return the motor vehicle to it in the same condition in which it was received, ordinary wear and tear alone excepted, as required by the lease contract, was $1,331.93, "the same being the amount of monthly rental installments which would have otherwise been due and payable under the said agreement, plus the sum of one ($1.00) dollar representing the option purchase price of the leased property." The prayer was that the plaintiff have judgment against the defendant in that amount.
The allegations of the petition quoted in the foregoing statement of facts admit of no construction other than that the motor vehicle truck which was the subject matter of the lease contract was destroyed by fire without fault or neglect on the part of the defendant. Much, if not the entire, argument of counsel for the parties is devoted in their briefs in this case to a discussion of whether the contract sued on (admittedly a "bailment lease" as defined in Great American Indem. Co. v. Ashbaugh, 96 Ga. App. 166, 99 SE2d 501) obligated the lessee as an insurer of the truck and absolutely required the lessee to return the truck to the lessor in as good condition as when received by it, natural wear and tear excepted, or to pay the lessor its value in the case of the destruction of the truck without fault on the part of the lessee. All of this argument is beside the point, however, and it is unnecessary to decide in this opinion whether the contract was sufficient to authorize the plaintiff to recover for the value of the leased property upon its destruction, because the suit in this case is one expressly to recover the rental which would have accrued on the leased vehicle for the remainder of the term and nothing more.
Code 12-207 provides: "The loss or destruction of the thing hired, without fault on the part of the hirer, puts an end to the bailment, and the hirer should pay only for the time it was enjoyed." No provision of the lease contract in this case expressly or by implication required the lessee to continue paying the rental on the motor truck after its loss or destruction, and in the absence of a clear expression of intention by the parties that some other rule would govern their rights in the matter, the provisions of the foregoing Code section must control. The petition contains no prayer for general or nominal damages but only for special damages in the amount of the balance of the rental which would have accrued plus the one dollar representing the option purchase price. Under the Code section quoted above the rental was not recoverable after the destruction of the truck, and since the petition fails to allege that the defendant had in any wise exercised its option to purchase the vehicle, no basis for the recovery of the option purchase price was shown. Since none of the damages sought were recoverable, the petition was subject to general demurrer and was properly dismissed. Hadden v. Southern Messenger Service, 135 Ga. 372 (69 SE 480); Truitt v. Rust & Shelburne Sales Co., 25 Ga. App. 62 (2) (102 SE 645); Barrick v. American Mfg. Co., 30 Ga. App. 761 (2) (119 SE 218); Stewart v. Western Union Tel. Co., 83 Ga. App. 532 (3) (64 SE2d 327); Strickland v. Flournoy, 95 Ga. App. 315 (2) (97 SE2d 638).
Judgment affirmed. Nichols, P. J., and Jordan, J., concur.
Brannen, Clark & Hester, H. Sol Clark, contra.
Bouhan, Lawrence, Williams, Levy & McAlpin, George W. Williams, Thomas J. Dillon, Walter C. Hartridge, III, for plaintiff in error.
Friday May 22 22:12 EDT

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