Olan Mills, Inc. of Tenn. v. Cannon Aircraft Executive Terminal, Inc., 279

• Decision Date: 01 May 1968
• Docket Number: No. 279,279
• Citation: 160 S.E.2d 735,273 N.C. 519
• Parties: , 43 A.L.R.3d 591 OLAN MILLS, INC. OF TENNESSEE v. CANNON AIRCRAFT EXECUTIVE TERMINAL, INC.
• Court: North Carolina Supreme Court

Page 735

160 S.E.2d 735

273 N.C. 519, 43 A.L.R.3d 591

OLAN MILLS, INC. OF TENNESSEE v. CANNON AIRCRAFT EXECUTIVE TERMINAL, INC.

No. 279.

Supreme Court of North Carolina.

May 1, 1968.

Boyle, Alexander & Carmichael, by, R. C. Carmichael, Jr., Charlotte, for defendant appellant.

Hedrick, McKnight & Parham, by, Philip R. Hedrick, Charlotte, for plaintiff appellee.

PARKER, Chief Justice.

Defendant assigns as error the overruling of its motion for judgment of compulsory nonsuit made at the close of all the evidence, and certain alleged errors in the admission of evidence and in the court's charge to the jury.

Plaintiff's evidence tends to show: The plaintiff is a Tennessee Corporation engaged in the business of portrait photography with its principal place of business in Chattanooga, Tennessee. In July 1962 it operated two studios in Charlotte. Defendant is a North Carolina corporation with its principal place of business in Charlotte. It operates for profit a terminal and service facilities at Charlotte Municipal Airport, and in the course of its business maintains hangars, service areas, and areas for parking and tying down aircraft.

On 23 July 1962 plaintiff's 1948 twinengine Beechcraft airplane was piloted by its employee, Olan Mills, II, from Columbia, South Carolina, to Charlotte, arriving at Charlotte Municipal Airport about 12 noon. Mills wanted to have the plane's radio worked on, and had previously had radio work done by defendant. Mills was accompanied on his trip to Charlotte by Mr. and Mrs. J. M. McMillan and James E. Jolly, all employed by plaintiff corporation. Upon landing, Mills taxied the plane to the defendant's terminal and was directed to park in front of the terminal. He parked the plane, set the brake, locked the tail wheel to keep it from swiveling, and went into defendant's radio shop. He told the repairman that he had some radio work that needed to be done. Then Mills and the other three members of his party went to the terminal office and called someone on the telephone to pick them up and drive them into Charlotte. When the group left the terminal, the plane was still in the same place Mills had parked it. Mills was an experienced pilot, having been licensed in 1946; in 1952 he entered the Army, completed the Army aviation program, and flew while in the service.

Plaintiff alleges in its complaint that it delivered its airplane to defendant for repairs. Defendant admits in its answer that the plane was left with it. According to the plaintiff's evidence, and according to the allegation in its complaint and admission in defendant's answer, the relationship of plaintiff and defendant was that of bailor and bailee; defendant in its brief admits this relationship. Under the circumstances defendant was under a legal duty to exercise ordinary care to protect plaintiff's airplane against loss, damage or destruction, and to return it in as good condition as when it received it. Liability for any damages to the airplane while in defendant's possession turns upon the question of the presence or absence of actionable or ordinary negligence on its part, M. B. Haynes Electric Corp. v. Aero Corp., 263 N.C. 437, 139 S.E.2d 682; Dellinger v. Bridges, 259 N.C. 90, 130 S.E.2d 19; Millers Mutual Insurance Co. v. Atkinson Motors, Inc., 240 N.C. 183, 81 S.E.2d 416; Vincent v. Woody, 238 N.C. 118, 76 S.E.2d 356; Beck v. Wilkins, 179 N.C. 231, 102 S.E. 313, 9 A.L.R. 554; Hanes v. Shapiro, 168 N.C. 24, 84 S.E. 33.

Plaintiff's evidence also tends to show the following: While Mills and his party were in Charlotte, a storm arose, with heavy rain and wind. When Mills returned to the airport about 5:30 p.m. and saw the Beechcraft it was about one hundred fifty feet south of where he had left it, wedged between a tree and a telephone pole. It was severely damaged. J. M. McMillan returned to the airport about 5:15 p.m. in an automobile with his wife and James E. Jolly. He drove up to the plane to see if Mr. Mills was there. He looked to see if the plane had been secured and it had not. At that time the storm was increasing and McMillan drove back to the office area and sat in the car until the storm ended. McMillan had flown with Mills before and had served as a crew chief in charge of aircraft service and security in the Army Air Corps from 1942 to 1945.

Mrs. Willa McMillan testified that she 'did not see any security ties of large chains or ropes or anything of that nature attached to the aircraft' when her husband drove up to it in the automobile. James E. Jolly also testified that he saw no lines or chains tying down the airplane. The McMillans and Jolly stated that they observed the plane again after the storm ended and that it was some distance from where they had last seen it and was severely damaged.

W. J. Connell, the operator of a repair and service shop for executive aircraft at Love Field in Dallas, Texas also testified for the plaintiff. In July 1962 he had been in the aviation business for 33 years; for 3 1/2 years during World War II he was overseas as a technical adviser to the Air Corps with the duty of inspecting aircraft that had been damaged in battle or from other causes to determine if the planes were economically repairable; during this time he examined approximately 2000 aircraft, made detailed reports, and followed their repair and return to service. Connell testified that he had examined an average of approximately 100 aircraft per year in 43 states and several foreign countries since World War II, including many Beechcrafts similar to the one owned by the plaintiff. On the Saturday following the storm, Connell examined plaintiff's aircraft and determined that the repair cost would be approximately $46,000, and that it would not be economically feasible to repair the aircraft. He testified that the generally accepted practice for securing an aircraft when it was not stored in a hangar was to place chocks in front and rear of each main wheel, as well as tying the plane down with ropes, cables or chains; that the generally accepted practice for tying down an aircraft that is not equipped with tie-down loops on the wings was to tie it down by the landing gear.

Plaintiff's evidence tends to show that it delivered its airplane to defendant in good condition except for the trouble with the radio; that defendant accepted it for the purpose of checking and repairing the radio; that thereafter defendant had possession and control of it; that when plaintiff's employee returned to pick it up he found it in a badly damaged condition. This made out a Prima facie case of actionable negligence against defendant, and, in the absence of some fatal admission or confession, was sufficient to take the case to the jury. M. B. Haynes Electric Corp. v. Aero Co., supra; Dellinger v. Bridges, supra; Millers Mutual Insurance Co. v. Atkinson Motors, Inc., supra; Vincent v. Woody, supra; Wellington-Sears Co. v. Finishing Works, 231 N.C. 96, 56 S.E.2d 24; Oil Co. v. Iron Works, 211 N.C. 668, 191 S.E. 508; Hutchins v. Taylor Buick Co., 198 N.C. 777, 153 S.E. 397; Beck v. Wilkins, supra; Hanes v. Shapiro, supra.

This Court said in Millers Mutual Insurance Co. v. Atkinson Motors, Inc., supra, at 187:

'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. 121): '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. Bank, 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.'

Defendant relies on Morgan v. Citizens' Bank of Spring Hope, 190 N.C. 209, 129 S.E. 585, 42 A.L.R. 1299, and Swain v. Twin City Motor Co., 207 N.C. 755, 178 S.E. 560, in which judgments of involuntary nonsuit were affirmed. However, those two cases are easily distinguishable from the one now before the Court. In Morgan v. Citizens Bank of Spring Hope, 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. 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.

The defendant contends that a judgment of involuntary nonsuit should nevertheless have been entered, for the reason that its evidence clearly rebuts plaintiff's Prima facie case. With that contention we do not agree.

Defendant's evidence tends to show: That about 4 p.m. two of defendant's employees moved the plaintiff's plane from where it had been parked to the tie-down area of defendant's ramp; that the plane was tied down by chains on each main landing gear and on the tail wheel; that chocks were placed in front and behind the main wheels; that neither the controls nor the...