Falls v. Goforth

• Decision Date: 22 November 1939
• Docket Number: 526.
• Citation: 5 S.E.2d 554,216 N.C. 501
• Parties: FALLS v. GOFORTH.
• Court: North Carolina Supreme Court

5 S.E.2d 554

216 N.C. 501

FALLS v. GOFORTH.

No. 526.

Supreme Court of North Carolina

November 22, 1939

Civil action to recover the value of a mule loaned the defendant by plaintiff.

On 22 June, 1938, the plaintiff loaned the defendant a mule to mow a field of oats. The defendant hitched the plaintiff's mule and one of his own to a mowing machine and started mowing about 2:00 P.M. The field was 726 steps in circumference. The defendant went round and round, in a circle, and did not have to stop to turn around. In about an hour, the plaintiff's mule fell in harness and died of heat exhaustion.

Sam Childres, witness for the plaintiff, testifies that he saw the defendant working the mules "mighty fast to be as hot as it was. *** It was awful hot. *** He slapped at the mule (with a little whip) one time and the mule was pulling most of the machine. *** He did not stop at all while I was in sight of them for some 4 or 5 minutes".

There is further evidence that the defendant's mule was "pretty slow" and would not keep up with plaintiff's mule, which was "a smart mule, free to go ***, could not take a whipping and didn't need it". Also that plaintiff's mule was in good condition when loaned to the defendant.

From judgment of nonsuit entered at the close of plaintiff's evidence, he appeals, assigning error.

A C. Jones and John A. Wilkins, both of Gastonia, for plaintiff, appellant.

Ernest R. Warren, of Gastonia, for defendant, appellee.

STACY Chief Justice.

The appeal presents the question whether the facts bring the instant case within the principle announced in Beck v Wilkins-Ricks Co., 179 N.C. 231, 102 S.E. 313, 9 A. L.R 554, or the rule applied in Morgan v. Citizens' Bank of Spring Hope, 190 N.C. 209, 129 S.E. 585, 42 A.L.R 1299. We think the case is controlled by the decisions in Beck v. Wilkins-Ricks Co., supra; Hutchins v. Taylor-Buick Co., 198 N.C. 777, 153 S.E. 397; and Hanes v. Shapiro & Smith, 168 N.C. 24, 84 S.E. 33.

The relation of plaintiff and defendant was that of bailor and bailee. Ordinarily, the liability of a bailee for the safe return of the thing bailed is made to depend upon the presence or absence of negligence. In proving this, the bailor has the laboring oar, but it has been held in a number of cases that a prima facie showing of negligence is made out when it is established that the bailee received the property in good condition and failed to return it, or...