Swain v. Twin City Motor Co., Inc.

• Decision Date: 27 February 1935
• Docket Number: 737.
• Citation: 178 S.E. 560,207 N.C. 755
• Parties: SWAIN v. TWIN CITY MOTOR CO., Inc.
• Court: North Carolina Supreme Court

178 S.E. 560

207 N.C. 755

SWAIN v. TWIN CITY MOTOR CO., Inc.

No. 737.

Supreme Court of North Carolina

February 27, 1935

Appeal from Superior Court, Forsyth County; McElroy, Judge.

Action by Coy Swain against the Twin City Motor Company, Inc. Judgment for plaintiff, and defendant appeals.

Reversed.

CLARKSON J., dissenting.

Where chattels are delivered to bailee in good condition and are returned in damaged state, or are lost or not returned law presumes negligence and casts on bailee burden of showing loss is due to other causes consistent with due care on his part.

The plaintiff was the owner of a Ford automobile which he had purchased from the defendant. The pertinent facts disclosed by plaintiff's testimony are as follows: "I traded for the car with Mr. DeTamble, personally, out at his home on Tuesday night, and he told me to bring it back the next day that they would wash it, grease it and fix it up for me. * * * I took it back Saturday morning and left it at defendant's place of business to have it washed and greased. I drove the car in their place of business and asked Mr. Hunter, the man who checks cars in and checks them out where to put it. He told me to drive it back inside and leave the keys in it for he had to take it up on the next floor to the wash-pit. I did leave the keys in the car. * * * About eleven o'clock on the Saturday that I left the car there Mr. Hunter called me on the phone and said somebody had stolen my car. * * * It was about eight o'clock on Saturday morning that I left my car at the Twin City Motor Company and they notified me it was stolen about eleven o'clock that morning, about three hours after I had left it there. * * * The Twin City Motor Company building has three floors, including the basement, and I left my car on the first floor, with the garage. * * * When Mr. Hunter called me to tell me my car had been stolen he said he saw a fellow standing out there looking at the cars, leaning up against the wall. * * * He said he took notice of him and then went on to doing something to another car, and saw him go out the door; that he like to hit a fellow, he went out the door so fast. * * * Mr. Hunter told me he saw a fellow with a light overcoat on, well dressed, leaning up against the wall, looking at the cars, and said when he went to turn his back to him and do something else, he saw him go out with my car." There was further evidence that the doors of the garage were open for patrons to come in, and that no special employees or watchmen were placed at the entrance.

Hunter a witness for defendant, testified that when plaintiff left his car in the garage, "we greased the car and sent it upstairs to have it washed. The boy washed it and brought it down stairs about quarter to eleven or something like that. I was busy around there waiting on people and I saw a man standing there, a little larger than I am, a nice looking fellow. I told him I would wait on him in just a few minutes and went ahead doing what I was doing, and the next thing I knew * * * I heard a noise going out the door. I looked up and the car was going out as fast as it could go. * * * There were five or six people in the department where Mr Swain's car was stored at the time it was taken out and there were a number of other cars in there. The place was full, six or eight cars in front, and the man just had room to drive Mr. Swain's car out. Mr. Swain's car was parked about 100 feet from the door, about the center of the building. * * * There was nothing unusual about the conduct or appearance of the person whom I had seen standing in the garage and who drove Mr. Swain's car out. * * * He was nice looking, well dressed, seemed to be about twenty-eight years old. Strangers frequently come in the garage to have work done on cars. * * * I often have to let people wait while I wait on other customers. * * * There was nothing said about leaving the keys, but he had to leave the keys in the car or we couldn't move it up to the next floor to wash and grease it. * * * The car was left with the keys in it. It was between ten thirty and eleven o'clock that the man whom I have...