Vincent v. Woody

Barnhill, J. Tbe appellant’s exception to tbe denial of bis motion to dismiss tbe action as in ease of involuntary nonsuit is untenable. He admits in bis answer that plaintiff bolds tbe legal title to tbe vehicle in controversy and that be received possession thereof from plaintiff, which possession be has not voluntarily surrendered. Even now be claims tbe right of possession under an agreement that be should retain tbe same as security for tbe debt alleged to be due bim by plaintiff. And plaintiff offered evidence tending to show that while tbe vehicle was in Woody’s possession or in tbe possession of Herndon as bis agent, parts were removed therefrom and it was otherwise materially damaged. This evidence suffices to make out a case for the jury. *120 On this record the defendant was a bailee. As such, it was his duty to exercise ordinary care to protect the property hailed against damage and to return it in as good condition as it was when he received it. Hence he is liable for any damages to the vehicle in question while in his possession which was proximately caused by his negligence or the negligence of his agent. Falls v. Goforth, 216 N.C. 501, 5 S.E. 2d 554; Trustees v. Banking Co., 182 N.C. 298, 109 S.E. 6; Insurance Asso. v. Parker, 234 N.C. 20, 65 S.E. 2d 341. While the burden rested upon plaintiff to establish his cause of action, it is an established rule in this jurisdiction that evidence tending to show that the bailee failed to return the chattel held in bailment free from damage is prima facie evidence that the loss or damage was due to the negligence of the bailee and is sufficient to repel a motion to dismiss as in case of nonsuit. Perry v. R. R., 171 N.C. 158, 88 S.E. 156; Trustees v. Banking Co., supra; Beck v. Wilkins, 179 N.C. 231, 102 S.E. 313; Falls v. Goforth, supra; Wellington-Sears Co. v. Finishing Works, 231 N.C. 96, 56 S.E. 2d 24. The plaintiff contended that the vehicle was delivered to Herndon without his knowledge or consent. Woody contended it was delivered by him and plaintiff jointly and plaintiff gave instructions as to the repairs and replacements to he made by the mechanic. The excerpt from the charge of the court directed to the evidence on this phase of the case, to which defendant excepts, lifted out of context, would seem to make defendant an insurer of the safe return of the property bailed in an undamaged condition. In the event “the automobile was placed in possession of Herndon without the knowledge, consent, or permission of the plaintiff; and as a result of the automobile having been placed in his possession, Herndon’s, without the knowledge, consent, or permission of the plaintiff, and it was then damaged by Herndon; then Woody would be liable for the damage done to said automobile while in the possession of Hern-don . . .” Eut it is axiomatic that the charge must be read and construed contextually. Immediately preceding the instruction to which exception is entered the court had correctly instructed the jury as to defendants’ liability. Immediately following, the court emphasized the fact that defendants’ liability in any event depended upon the presence or absence of negligence. It then applied the law specifically to the case on trial in the following language: “So that in this case, if you find that the relationship of bailor and bailee existed between the plaintiff and defendant, the defendant had imposed upon him the responsibility of exercising due care to return the property in the same condition as it was when delivered to him, or to keep the same in good order and condition until bail was made. And if by his *121 failure to exercise due care, tbe property was damaged in any amount, tbe plaintiff would have carried tbe burden of tbe fourth issue, entitling bim to nominal damages at least. And tbis fact is so prominent (sic), tbat if tbe defendant placed tbe car in tbe bands of some other person; tbat is to say, if Woody placed tbe car in tbe bands of Herndon, and Herndon failed to use due care and subjected it to abuse; then Woody is answerable to any conduct on tbe part of Herndon tbat caused a decrease in value of tbe automobile; and be, Woody, delivering tbe car to Herndon, would and did make Herndon bis agent.” Ordinarily tbe presiding judge must instruct tbe jury extemporaneously from such notes as be may bave been able to prepare during tbe trial. To require bim to state every clause and sentence so precisely tbat even when lifted out of context it expresses tbe law applicable to tbe facts in tbe cause on trial with such exactitude and nicety tbat it may be held, in and of itself, a correct application of tbe law of tbe case would exact of tbe nisi prius judges a task impossible of performance. Tbe charge is sufficient if, when read contextually, it clearly appears tbat tbe law of tbe case was presented to tbe jury in such manner as to leave no reasonable cause to believe tbat it was misled or misinformed in respect thereto. Such is tbe case here. Tbe charge, when read as a composite whole, leaves us with tbe impression tbe jury must bave understood tbat defendant was liable only for those damages to tbe automobile which proximately resulted from bis negligence or tbe negligence of bis agent. In tbe final analysis, tbe case is one of fact. Tbe evidence in many respects was in sharp conflict. Tbe jury, having beard both sides, has decided tbe issues in favor of plaintiff. Tbe testimony was such tbat it might well bave answered them in favor of tbe defendant. Tbe weight and credibility of tbe testimony was for it, and not for tbe court, to decide. Defendant must noiv abide tbe result. No error.