Terrell v. H & N Chevrolet Co., 713DC148

• Decision Date: 26 May 1971
• Docket Number: No. 713DC148,713DC148
• Citation: 181 S.E.2d 124,11 N.C.App. 310
• Court: North Carolina Court of Appeals
• Parties: Bennie TERRELL v. H & N CHEVROLET COMPANY, Inc.

Page 124

181 S.E.2d 124

11 N.C.App. 310

Bennie TERRELL v. H & N CHEVROLET COMPANY, Inc.

No. 713DC148.

Court of Appeals of North Carolina.

May 26, 1971.

Barden, Stith, McCotter & Sugg by F. Blackwell Stith, New Bern, for defendant appellant.

No counsel for plaintiff appellee.

MALLARD, Chief Judge.

After the plaintiff out on his evidence and rested, the defendant made a motion for a directed verdict; and at the close of all the evidence, the defendant again made a motion for a directed verdict. After the verdict the defendant made five motions including one for judgment notwithstanding the verdict. All of these motions were denied. None were properly made because none of them incorporated the rule number under which movant was proceeding. See Rule 6 of the 'General Rules of Practice for the Superior and District Courts Supplemental to Rules of Civil Procedure Adopted Pursuant to G.S. 7A--34.'

While we do not specifically rule on defendant's assignments of error relating to the motions, we think it is proper to say that when an owner delivers possession of an automobile which is accepted by a garage owner for the purpose of making necessary repairs, a bailment is created for the mutual benefit of the bailor and bailee. In Millers Mut. Insurance Ass'n v. Atkinson Motors, Inc., 240 N.C. 183, 81 S.E.2d 416 (1954), it is said:

* * * (I)n such case the duty of the bailee is to exercise due care and his liability depends upon the presence or absence of ordinary negligence. * * *

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. * * *'

See also Dellinger v. Bridges, 259 N.C. 90, 130 S.E.2d 19 (1963), in which the Supreme Court held:

'Plaintiff's evidence tends to show that he delivered his automobile to Piedmont, that Piedmont accepted it, and thereafter had possession and control of it, and that it failed to return the automobile and had it in its possession and control in a damaged condition. This made out a Prima facie case of actionable negligence against Piedmont. (citations omitted)

While plaintiff's evidence makes out a Prima facie case of negligence against Piedmont, the ultimate burden of establishing negligence is on plaintiff, the bailor, and remains on him throughout the trial. (citations omitted)'

In the case at bar the judge said in charging the jury:

'There are three issues in this case, which have been stipulated and are agreed to by counsel for both sides. That is, counsel for the plaintiff and defendant agree that these are the questions you as a jury must answer.'

The defendant excepts to this and asserts that it did not so stipulate. The record does not reveal such a stipulation and therefore does not support this part of the charge. Absent a stipulation to that effect in the record, it was error for the trial judge to instruct the jury that the parties had so stipulated. See State Highway Commission v. Phillips, 267 N.C. 369, 148 S.E.2d 282 (1966).

The judge further charged the jury:

'I charge you that the degree, for example, of care to be used against a fire damage wherein there was no fire-fighting equipment for miles around would be a great deal more care than that to be used probably by a business or organization next door or one block from the fire station.'

Defendant assigns this portion of the charge as error. Under the provisions of G.S. 1A--1, Rule 51, the judge is required to 'declare and explain the law arising on the evidence given in the case.' The judge is not required to declare and explain the law on a set of hypothetical facts. State v. Street, 241 N.C. 689, 86 S.E.2d 277 (1955). There was no evidence in this case about fire and fire-fighting equipment, and therefore the evidence introduced does not permit the application of this principle. State v. Street, Supra; Ross v. Atlantic Greyhound Corp., 223 N.C. 239, 25 S.E.2d 852 (1943). In the case of Rea v. Simowitz, 226 N.C. 379, 38 S.E.2d 194 (1946), the Court said:

'In explaining legal principles to a lay jury the trial judge's use of illustrations should be carefully guarded to avoid suggestions susceptible of inferences as to the facts beyond that intended. And this Court has on occasion awarded new trials where illustrations or hypothetical references were deemed to constitute prejudicial error.'

While the instructions here complained of may not have been prejudicial Per se, when viewed in the light of the remainder of the charge, we think it may have tended to further...