Beck v. Wilkins-Ricks Co.

• Decision Date: 25 February 1920
• Docket Number: 110.
• Citation: 102 S.E. 313
• Parties: 179 N.C. 231, 9 A.L.R. 554 v. WILKINS-RICKS CO. BECK
• Court: North Carolina Supreme Court

102 S.E. 313

179 N.C. 231, 9 A.L.R. 554

BECK v. WILKINS-RICKS CO.

No. 110.

Supreme Court of North Carolina

February 25, 1920

Appeal from Superior Court, Lee County; Connor, Judge.

Action by A. C. Beck against the Wilkins-Ricks Company. Judgment of nonsuit, and plaintiff excepts and appeals. Reversed.

In bailor's action against bailee for loss or destruction of bailment, the burden of proving negligence rests upon bailor and does not shift throughout the trial, but the burden of proceeding does shift, and where bailor has shown that bailee received the property in good condition and failed to return it, or returned it injured, bailor has made out a prima facie case of negligence, which the bailee is called upon to explain; the matter being one within his special knowledge.

Action for damages for the destruction of an automobile while in the defendant's garage for repairs. It was in evidence that the plaintiff carried his car to the garage for certain minor repairs, and was to call for it at noon; it being understood that he would need it at that time. When he called for it at that time he was told that it would take only a short time longer, not more than 30 minutes. The plaintiff then stated that he would call for it when he came back from dinner, but being delayed he went at 5 p. m. and found his automobile torn down and the defendant's employés grinding the valves, which had not been authorized by plaintiff. The answer admits that the machine was not in such condition that it could be removed that afternoon. It is alleged in the complaint and admitted in the answer that during that night the building was destroyed by fire and the car with it. The complaint alleges the liability for negligence and also for departure from the terms of the bailment and also a promise to pay by the company after the destruction of the machine. At close of plaintiff's evidence the court sustained a motion for judgment as of nonsuit, and the plaintiff excepted and appealed.

Allen J., dissenting.

E. L Gavin, Williams & Williams and Hoyle & Hoyle, all of Sanford for appellant.

Seawell & Milliken, of Sanford, for appellee.

CLARK C.J.

The defendant as bailee assumed liability of ordinary care for the safe-keeping and the return of the machine to the bailor in good condition. The bailee did not assume liability as insurer, and therefore did not become liable for the nonreturn of the property in good condition if he observed the ordinary care devolved upon him by reason of the bailment. If the machine had been injured or stolen or destroyed by fire while in his custody, the defendant would not be liable if such care had been observed. On the other hand, the mere fact that the property had been destroyed by fire or stolen did not absolve him from responsibility, any more than he would have been absolved if it had been injured in his custody, unless he had shown that he had used the care required of him by virtue of his bailment. The burden of proving negligence was on the plaintiff, and this burden does not shift; but when it was shown, or admitted, that the machine was not returned by reason of its being destroyed or stolen, or that it was returned in injured condition, it was the duty of the defendant to "go forward" with proof to show that it had used proper care in the bailment. Therefore it was error for the court to withdraw the case from the jury and thus to hold, as a matter of law, that the defendant had exercised proper care.

The law is admirably summed up and stated, upon a review of all the authorities, in 6 Corpus Juris, pp. 1157-1160, as follows:

"Sec. 156. In an action to recover the bailed property the burden of proof is on the bailor to establish the bailment and the failure to return the property in accordance with the contract."

"Sec. 158. The rule is undoubted that in all actions founded upon negligence, or a culpable breach of duty, the burden is on plaintiff to establish negligence by proof. This principle is recognized by all the authorities as applicable between bailor and bailee, and the only conflict is on the question whether the loss of, or damage to, the goods while in the bailee's possession raises such a presumption of negligence on his part as to establish a prima facie case against him.

Sec. 159. In some of the old decisions it was held that the loss or injury raised no presumption of negligence. The bailee is not an insurer of the goods, and when they are lost or damaged it was said that the law, which never presumes any man negligent, would rather attribute the loss to excusable causes. It was not enough for plaintiff to prove the loss or injury, but it was held that he must go further and must show that the same had occurred by defendant's negligence.

Sec. 160. The Modern Rule. The rule adopted in the more modern decisions is that the proof of loss or injury establishes a sufficient prima facie case against the bailee to put him upon his defense. Where chattels are delivered to a bailee in good condition and are returned in a damaged state, or are lost or not returned at all, the law presumes negligence to be the cause, and casts upon the bailee the burden of showing that the loss is due to other causes consistent with due care on his part. But if the possession of the bailee has not been exclusive of that of the bailor the rule does not apply. In order to throw the burden of evidence upon the bailee it is sufficient that the bailor has shown damage to the bailed article that ordinarily does not happen where the requisite degree of care is exercised."

The above is sustained by the almost uniform authorities cited in the notes to the above and the reasons are thus summed up:

"Reasons of Rule.--(1) 'Since the bailor is generally at a disadvantage in obtaining accurate information of the cause of the loss or damage, the law considers he makes out a case for the application of the rule of res ipsa loquitur by proof of the bailment and the failure of the bailee to deliver the property on proper demand.' Corbin v. Cleaning Co., 181 Mo.App. 151, 155, 167 S.W. 1145. (2) 'The rule rests upon the consideration that, where the bailee has exclusive possession, the facts attending loss or injury must be peculiarly within his own knowledge. Besides, the failure to return the property, or its return in an injured condition, constitutes the violation of a contract, and it devolves upon the bailee to excuse or justify the breach.' Nutt v. Davison, 54 Colo. 586, 588, 131 P. 391, 44 L. R. A. (N. S.) 1170. (3) 'The rule is founded in necessity and upon the presumption that a party who, from his situation, has peculiar, if not exclusive, knowledge of facts, if they exist, is best able to prove them. If the bailee, to whose possession, control and care the goods are intrusted, will not account for the failure or refusal to deliver them on demand of the bailor, the presumption is not violent that he has been wanting in diligence, or that he may have wrongfully converted or may wrongfully detain them; or if there be injury to or loss of them during the bailment, it is but just that he be required to show the circumstances, acquitting himself of the want of diligence it was his duty to bestow.' Davis v. Hurt, 114 Ala. 146, 150, 21 So. 469, quoted in Hackney v. Perry, 152 Ala. 626, 633, 44 So. 1029, 1031."

In 6 Corpus Juris, 1160, the conclusion from the long list of authorities and citations in the notes is thus summed up:

"The burden of proof of showing negligence is on the bailor and remains on him throughout the trial. The presumption arising from the injury to the goods or failure to redeliver is sufficient to satisfy this burden and make out a prima facie case against the bailor; but the bailee may overcome this presumption by showing that

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