Millers Mut. Ins. Ass'n of Ill. v. Atkinson Motors, 533

• Decision Date: 28 April 1954
• Docket Number: No. 533,533
• Court: North Carolina Supreme Court
• Parties: MILLERS MUT. INS. ASS'N OF ILLINOIS et al. v. ATKINSON MOTORS, Inc.

Page 416

81 S.E.2d 416

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. Seaboard 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 nott 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...