Millers Mutual Insurance Ass'n of Illinois v. Atkinson Motors, Inc. ( 1954 )

81 S.E.2d 416 (1954) 240 N.C. 183

MILLERS MUT. INS. ASS'N OF ILLINOIS et al.
v.
ATKINSON MOTORS, Inc.

No. 533.

Supreme Court of North Carolina.

April 28, 1954.

William H. Booe, Charlotte, for plaintiffs, appellants.

Pierce & Blakeney, R. E. Wardlow and C. W. Bundy, Charlotte, for defendant, appellee.

BOBBITT, Justice.

The testimony of Connelly tends to show that when he delivered his car to defendant for the general 500 mile check-up, he called attention to a number of specific items, e. g., the cigarette lighter was out, the radio had a hum in it, etc.; also, that defendant was to make such repairs as part of the consideration for the purchase price paid by him.

Under these circumstances, the defendant's possession and control was that of bailee, under a bailment for the mutual benefit of the bailor and the bailee; and in such case the duty of the bailee is to exercise due care and his liability depends upon the presence or absence of ordinary negligence. Hanes v. Shapiro & Smith, 168 N. C. 28, 84 S.E. 33; Hutchins v. Taylor-Buick Co., 198 N.C. 777, 153 S.E. 397; 8 C.J.S., Bailments, § 27, page 269; 6 Am.Jur. p. 361, Bailments, sec. 248. Ordinarily, unless made so by statute or by express contract, the bailee is not an insurer. He is liable only for negligent loss or damage to property. Beck v. Wilkins-Ricks Co., 179 N.C. 231, 102 S.E. 313, 9 A.L.R. 554; 8 C.J.S., Bailments, § 26, page 262; 6 Am.Jur. 345, Bailments, sec. 242; Annotation 16 A. L.R.2d 802. The bailee's obligation to exercise due care to protect the subject of the bailment from loss, damage or destruction arises from the relationship so created by the contract of bailment. While the relationship so created is basic, the legal duty is not a term of the contract; rather, it is imposed by law. Miller's Mutual Fire Insurance Assn. v. Parker, 234 N.C. 20, 65 S.E.2d 341.

A prima facie case of actionable negligence, requiring submission of the issue to the jury, is made when the bailor offers evidence tending to show that the property was delivered to the bailee; that the bailee accepted it and thereafter had possession and control of it; and that the bailee failed to return the property or returned it in a damaged condition. Hanes v. Shapiro & Smith, supra; Perry v. Sea" board Air Line R. Co., 171 N.C. 158, 88 S.E. 156, L.R.A.1916E, 478; Beck v. Wilkins-Ricks Co., supra; Trustees of Elon College v. Elon Banking & Trust Co., 182 N.C. 298, 109 S.E. 6, 17 A.L.R. 1205; Morgan v. Citizens' Bank, 190 N.C. 209, 129 S.E. 585, 42 A.L.R. 1299; Hutchins v. Taylor-Buick Co., supra; Swain v. Twin City Motor Co., 207 N.C. 755, 178 S.E. 560; Independent Oil Co. v. Broadfoot Iron Works, 211 N.C. 668, 191 S.E. 508; Falls v. Goforth, 216 N. C. 501, 5 S.E.2d 554; Wellington-Sears Co. v. Kerr Bleaching & Finishing Works, 231 N.C. 96, 56 S.E.2d 24; Bennett v. Atlantic Coast Line R. Co., 232 N.C. 144, 59 S.E.2d 598; 16 A.L.R.2d p. 805, et seq.

However, judgments of involuntary nonsuit were held proper in Morgan v. Citizens' Bank, supra, and Swain v. Twin City Motor Co., supra. For in Morgan v. Citizens' Bank, supra, it appeared affirmatively from undisputed evidence that plaintiff's bonds had been stolen by burglars, who blew open the vault with high explosives and broke into the safety deposit boxes by use of a sledge hammer and cold chisel, there being no evidence of negligence on the part of the defendant. And in Swain v. Twin City Motor Co., supra, it appeared affirmatively from undisputed evidence that a third party had stolen plaintiff's car under circumstances which negatived negligence on the part of defendant. Kelley v. Capital Motors, Inc., 204 S.C. 304, 28 S.E.2d 836, a South Carolina decision cited by defendant, is distinguishable on like grounds.

Here, the plaintiffs' evidence does not disclose the facts and circumstances relating to the burning of his car and its contents. Connelly testified that the defendant's building was of cement and steel construction, fire resistant, equipped with sprinkler system, etc., and that the garage was modern, up-to-date, safe and first-class. In his opinion, the fire came from the inside of the car. Also, upon cross-examination, he stated that he did not know of anything the defendant failed to do with respect to proper care of his car. While this evidence is favorable to defendant, the fact remains that Connelly left the car with defendant about 8:30 a. m. on the morning of 12 November, 1952, and did not see it again until the morning of 13 November, 1952, after the fire. In the meantime, it had been in the exclusive possession and control of defendant. The record is silent as to what was done to or with the car during this period. Was the general check-up made? What was its condition? Was the electrical system faulty? Were repairs made? Had the car been driven out of the garage? If so, by whom and under what circumstances? When did the fire occur? The fact that Connelly could have no knowledge of such matters, while the defendant could and should have full knowledge of these matters, indicates the reason underlying the rule as to mode of proof in such bailments. The prima facie case rule is invoked when the plaintiff's evidence discloses an unexplained failure to return the bailed property or an unexplained destruction of or damage to the bailed property while in the bailee's possession and control. Here, neither the allegations nor the evidence purport to particularize any facts or circumstances relating to the fire upon which negligence is predicated.

Here, as was true in Hutchins v. Taylor-Buick Co., supra, only the one car burned. Too, as in that case, Connelly's car was between two other cars, which did not burn. The facts in the two cases are quite similar. It would seem that this case is stronger for the plaintiffs' position for here the car was left for a general check-up, repairs and servicing while in that case the car was left for storage only. Be that as it may, Hutchins v. Taylor-Buick Co., supra, controls decision here.

Ordinarily, in a negligence case, it is incumbent upon plaintiff to allege and prove facts constituting actionable negligence; and, when the evidence fails to disclose actionable negligence as alleged, nonsuit is proper. Conjecture and surmise will not suffice. Appellant cites many cases involving this well settled principle. Decision in several of the cases cited turns upon the applicability or non-applicability of the doctrine of res ipsa loquitur, which, if applicable, makes out a prima facie case akin to that involved here. See White v. Hines, 182 N.C. 275, 109 S.E. 31. In the cases cited the doctrine res ipsa loquitur was held inapplicable; and the plaintiff was required to allege and prove his case under the ordinary rule. Here plaintiffs invoke a long established rule applicable to bailments. The evidence was sufficient under this rule to repel the defendant's motion for judgment of involuntary non-suit.

While it is not required, in the circumstances of this case, that the plaintiffs establish the specific negligent act or omission proximately causing the loss or damage, it is incumbent upon the plaintiffs to satisfy the jury by the greater weight of the evidence that the loss or damage was caused by negligence on the part of the defendant. Ross v. Double Shoals Cotton Mills, 140 N. C. 115, 52 S.E. 121, 1 L.R.A.,N.S., 298; Howard v. Texas Co., 205 N.C. 20, 169 S.E. 832.

By analogy to the doctrine of res ipsa loquitur, plaintiffs are not relieved of the burden of proof nor is any presumption raised in their favor. Indeed, it has been stated, Ross v. Double Shoals Cotton Mills, supra, that the trial judge should make no reference to the expressions "prima facie case" or "presumptive evidence;" rather it is for the jury to say, upon the facts and the circumstances shown by plaintiff's evidence, whether negligence should be inferred, that is, whether upon all the evidence the plaintiff has established actionable negligence.

When the facts in evidence make out a prima facie case, it is one for submission to the jury. As stated by Connor, J., in Ross v. Double Shoals Cotton Mills, supra [140 N.C. 115, 52 S.E. 123]: "The defendant may or may not introduce evidence, as it is advised. By failing to do so, it admits nothing, but simply takes the risk of non persuasion. This is what is meant by going forward with testimony. He, by this course, says that he is willing to go to the jury upon the plaintiff's evidence." If the defendant elects to offer evidence tending to explain the cause of the fire, the reasonableness of the explanation is for the jury. Springs v. Doll, 197 N.C. 240, 148 S.E. 251. If the defendant offers evidence tending to show what happened with reference to the car while in its possession as bailee, the credibility of such evidence is for the jury. If the evidence offered by the defendant, assuming credibility, would exonerate the defendant, it would be entitled to a peremptory instruction thereon. Travis v. Duckworth, 237 N.C. 471, 75 S.E.2d 309. The significance of "prima facie case" has been stated clearly and often. Speas v. Merchants' Bank & Trust Co., 188 N.C. 524, 125 S.E. 398; Hunt v. Eure, 189 N.C. 482, 127 S.E. 593; Vance v. Guy, 224 N.C. 607, 31 S.E.2d 766; N.C. Evidence, Stansbury, Section 203.

If the defendant exercised due care in handling and in keeping the Connelly car, no liability devolves upon it. It is liable only if the loss or damage was caused by its negligence.

The case here presented is one for the jury under appropriate instructions. Hence, the judgment of involuntary nonsuit at the close of plaintiffs' evidence is reversed.

Reversed.