Swain v. Twin City Motor Co.

BeogdeN, J. Tbe parties having agreed tbat tbe car of plaintiff was left in tbe garage of defendant for washing and greasing, and tbat tbe same was stolen, tbe question of law to be considered is: What duty does tbe owner and operator of a garage owe to a customer witb reference to tbe theft of tbe property by a third party while in tbe possession and under tbe control of such garage owner ? Tbe various aspects of tbe liability of garage owners for theft of automobiles of customers may be found in 15 A. L. R., 681; 65 A. L. R., 431, et seq. Tbe general principle governing liability as pronounced in this State is contained in Beck v. Wilkins-Ricks Company, 179 N. C., 231, 102 S. E., 313, as follows: “Tbe defendant, as bailee, assumed liability of ordinary care for tbe safe-keeping and tbe return of tbe machine to tbe bailor in good condition. Tbe bailee did not assume liability as insurer, and therefore did not become liable for tbe non-return of tbe property in good condition, if be observed tbe ordinary care devolved upon him by reason of tbe bailment. If tbe machine bad been injured, or stolen, or destroyed by fire while in bis custody, tbe defendant would not be liable if such care bad been observed. On tbe other band, tbe mere fact tbat tbe property bad been destroyed by fire or stolen did not absolve him from responsibility, any more than be would bave been absolved if it bad been injured in bis custody, unless be bad shown tbat be bad used tbe care required of him by virtue of bis bailment. *758 . . . The rule adopted in. the more modern decisions is that the proof of loss or injury established a sufficient prima facie case against the bailee to put him upon his defense. Where chattels are delivered to a bailee in good condition and are returned in a damaged state, or are lost or not returned at all, the law presumes negligence to be the cause, and casts upon the bailee the burden of showing that the loss is due to other causes consistent with due care on his part.” See Hanes v. Shapiro, 168 N. C., 24, 84 S. E., 33; Hutchins v. Taylor-Buick Company, 198 N. C., 777, 153 S. E., 397. Practically all courts are in accord upon the proposition that if the owner of an automobile carries it to a garage in good condition, for service furnished by such garage, and thereafter such bailee fails to return it, or returns it in a damaged condition, he makes out a pmma facie case, nothing else appearing, and is therefore entitled to have the jury determine the proper issues. But, suppose it should appear from the plaintiff’s evidence, or if the fact was uncontroverted, that while in such garage the car was struck by lightning or the employees of the garage were held up> by an armed highwayman and the car was taken from the custody of the bailee, who was otherwise exercising ordinary care, it would hardly be supposed that under such circumstances the law required the solemn formality of submitting issues upon such admitted facts. In the case at bar there is no dispute as to the fact of theft. It is not controverted that the car was parked within the garage, 100 feet from the door, and that there were attendants in and about the garage at the time. Consequently, the only fact upon which negligence could be based was the leaving of the keys in the car. In this connection it must be observed that the car could not be moved without the keys, and that the leaving of the keys was not only essential to rendering the service requested, but for moving the car in case of fire and other emergency in the garage. Furthermore, it was known by all parties that the car was to remain in the garage for a short period of time. Interpreting the evidence with that degree of liberality required in motions of nonsuit, no evidence of actionable negligence appears in the record, and the motion for nonsuit should have been granted. Reversed. ClaRicsoN, J., dissents.