*1 0.] Beck v. Wilkins. A. C. BECK v. WILKIN S-RICKS COMPANY.
(Filed February, 1920.) Garage—Automobiles—Ordinary Negligence. 1. Bailment — Care — plaintiff’s auto- Tbe defendant owner of a wbo bas received tbe regarded repairs, is and is not tbe failure mobile for liable for to return tbe condition wben be bas observed tbe ordi- nary bim bis bailment. care devolved Loquitur Ipsa of Proof —Res Same —Burden —Evidence—Nonsuit— Trials. repair, garage automobile for tbe owner of a receives an garage at after tbe owner bad called for it tbe tbe garage repair it, kept longer specified, tbe man to time but therein for damages owner of tbe automobile bas tbe burden of his action for proving, throughout tbe was caused tbe defend- tbe tbat tbe stated, having fire, ant, but shown tbe destruction of bis machine prima, go to rebut tbe tbe defendant must ipsa loquitur, judgment established, under tbe doctrine of res and a upon plaintiff's will nonsuit be denied. as of dissenting. At.len, J.,
Appeal Gormor, J., September Term, from by plaintiff Lee. in tbe of an automobile while
Action for for tbe destruction damages in evidence tbat tbe plaintiff It was repairs. defendant’s for garage to call minor and was repairs, bis ear to tbe for certain garage carried need it at tbat time. tbat be would for it at it' understood noon, being take be was told tbat it would for it at tbat time Wben be called stated minutes. Tbe then not more than 30 longer, a short time dinner, be came back tbat be would call for wben torn down and tbe bis automobile at 5 and found p.m. be went delayed, bad not been author- valves, tbe grinding employees not in such tbat tbe machine was Tbe answer admits ized by plaintiff. in tbe alleged afternoon. removed tbat tbat it could be condition tbe night tbat tbat build- during in tbe answer and admitted complaint Tbe complaint alleges car it. fire and tbe ing from tbe terms of tbe departure also for negligence, and tbe for after tbe destruction company tbe pay by also a promise tbe court sustained plaintiff’s tbe machine. At close excepted ap- and tbe nonsuit, plaintiff' for as of judgment motion pealed. Williams, Gavin, & Hoyle Hoyle & plaintiff.
E. L. Williams for & Millihen Seawell defendant. IN THE SUPREME COURT. [179
Beck v. Wilkins. *2 ordinary liability J. as assumed of bailee, C. The Clark, in return the machine to the bailor of care for safe beeping not as insurer, The assume good condition. bailee did in of the property good for the nonreturn therefore did become liable not him reason ordinary upon by if be care devolved condition, observed the de stolen, of If the machine bad been the bailment. liable in the defendant would not be custody, bis stroyed by while fact that if On the other mere band, such care bad been observed. him stolen fire or did absolve bad been if been it more than be would have absolved any responsibility, bis unless be bad shown that be bad used custody, bad in been bis of him bailment. virtue by care burden does not was on the proving that the machine was not returned admitted, shown, but when it was it was or that returned stolen, of its .destroyed, reason the defendant “to go it was the forward” with injured condition, Therefore, in the it bad used care bailment. to show that withdraw the case from and thus jury, it error the court to was the defendant bad exercised care. law, to as a matter of bold, stated, of all up summed review admirably The law 1157-1160, as follows: Corpus Juris, pp. the authorities, 6, action recover the bailed the burden 156. In an to “Sec. to establish the failure is on thе bailor to. with the contract.” accordance in all actions “Sec. 158. The rule undoubted founded is on duty, or a breach culpable negligence, proof. recognized negligence by principle establish bailor and and the between conflict applicable of, damage is on the whether the while questiоn bis presumption raises such possession bailee’s him.” against establish a prima it was some of the old decisions held the loss or “Sec. negligence. The bailee an in raised no damaged, and when lost or they surer of the said goods, man negligent, would presumes any which never rather attribute law, enough was not for plaintiff cаuses. It to prove the loss to excusable that be must held go.further but was and must injury, loss or negligence.” bad the same occurred show that adopted Bule. The rule in the modern 160. The Modern more “Sec. loss or establishes a is that the sufficient decisions him upon defense. put the bailee chat condition and are to a bailee returned in a tels are delivered returned at all, presumes lost or not the law state, negli damaged N. O.]
Beck Wilkins. bailee burden of cause, to be the casts gence care on part. causes consistent with due that the loss is due to other of that of has not been exclusive possession But In order to throw the burden the rule does not bailor, apply. has shown it “is sufficient that bailor degree the requisite does not where happen article that ordinarily
bailed of care exercised.” uniform authorities cited
The above is sustained
almost
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and the reasons
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Since
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Rule.
the bailor
Reasons
loss or
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be makes out a case for the
the law considers
damage,
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the
and
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rule
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property
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Co.,
“2. The rule or attending peculiarly loss must be injury the facts possession exclusive property, the to return the knowledge. Besides, failure within own of a con the violation condition, its in an constitutes or or the breach.” justify it the to excuse tract, upon devolves bailee Davidson, 588; 44 L. (N. S.), 54 R. A. Colo., v. Nutt that the necessity, presumption “3. The rule is founded if not situation, knowledge from bis has exclusive who, peculiar, a party is them. If the to whose prove if best able to facts, they exist, entrusted, will account for and care the not control, goods possession, the bailor, pre them on demand or refusal deliver the failure that wanting diligence, is violent that be has been not sumption them; or if detain may wrongfully be have convertеd or may wrongfully it is them, during just loss of the there be himself acquitting circumstances, that be be to show Hurt, Ala., 114 to bestow.” Davis v. it was diligence, want Perry, Ala., Hackney approved from the list of authori long conclusion Corpus Juris, 1160, summed : “The burden up the notes thus ties and citations him throughout the bailor and remains on showing negligence from the to the arising presumption the trial. this out a satisfy is sufficient to burden and make
failure to redeliver bailor; may but the bailee overcome case prima facie con that the loss occurred some cause through presumption This summing up care on bis part.” based, sistent with due Walker, J., clear statement of this Court very citations othеr 168 N. after that some of C., 31, which, stating v. Shapiro, in Hanes Walker, J., says: somewhat “But different, authorities were the old IN THE SUPREME COURT. [179> Beck v. Wilkins. the better opinion, holds that while supported authority, proving negligence rests does shift throughout the burden of that proceeding where the plaintiff has shown that property bailee receives the has condition, failed to return returned it he it, a prima of negligence.” case this 32): He further says (page “Unless the bailee overcomes that was consistent satisfying jury or damage with absence on his of' fault part, And may prevail.” he says (p. 33) further : “But those are, rules to the course, qualification bound, instances, when in- trusted with the bailee’s to exercise due care respect subject.” entitled have the facts of this submitted
The authorities to the above effect are and the more recent numerous, are uniform to that effect. or loss While destruction not conclusive of negli- failure gence, the to return property does devolve of gоing to show discharged of requisite care of the while in its It would custody. if the singular mere fact stolen injured was conclusive that bailee had exercised care. had It the best knowledge facts, thereof was not forthcoming could it. produce
To the same effect the other text-books and authorities. In 3 R. *4 C. 151 L., (Bailment, 74), sec. whеre explaining apparent conflict of the later with the older cases on this as due to the confusion point be- tween “the burden of the of proof” going forward,” it is “duty said: “The at least in the general rule, United seems States, to that where a alleges bailor of proves simply delivery property prima faciе and the latter’s bailee, failure to return on a demand, Ibid, is the bailee.” 152 it is (sec. that p. 75), said there are which support broad doctrine that “the burden of freedom proving negligence from of preponderance the evi- is dence, where or is on property damaged, bailee, destroyed, it would seem that sоme cases although of the contain language which indicate that it must be taken simply authority for the proposition in of loss of the that, to or of overcom- a of ing negligence rests on the bailee.” 2 In R. C. L., (Automobiles, 46), sec. is “It said: may be as settled that accepted persons operating garage to exеr- cise care reasonable to protect preserve automobiles placed their or and if custody storage for an automobile is repairs, So placed injured N. 0.] v. Wilkins.
Beck of of tbe or servants garage account destroyed negligence or on keeper keeper their authority garage of scope while within acting of into a delivery . . of the a car proof liable therefor. . On to car, reason the destruction of if the unable garage keeper the car is cast him to make on show thereof, his negligence.” “A refusal by Hale it is said failure or Bailments, that, on or him, to demand, warehouseman to on entrusted deliver, goods evidence in a damaged condition, return of the goods for accounting him non- to cast the burden negligence sufficient the burden on words, proving negligence In other delivery. authori- shifts,” citing but the evidence throughout, proof said “The burden of ties. further destruction, injury, prop- that the failure to return, therе devolves such erty prima facie that he exercised proper the bailee the going care.” the failure to return the
This is another simply way saying which, is a breach the contract of good condition to and that when recover, entitles the bailor unexplained, stolen, that the has been with- destroyed, claims is сalled on to some of the any put out fault on —it ordinary thereof. These occurrences out of circumstances knowledge being peculiarly course of facts events, evidence of the case to the bailee, carry sufficient discussed text and exhaustively *5 negligence employer eoemployees. thereof, of the the ordinary course,
theft property, it just as a collision or explain calls the bailee derailment carries case to which the the prima negligence, jury. Marcom facie R., 126 Ed. R. N. citations Anno. C., 200, and additional tending In this case there was some evidence to show negli that there was, others fact machine was gence, day IN THE SUPREME COURT. [179 Beck v. Wilkins. left in the remains of half-smoked garage, cigarettes lying around, that after the to pay of the defendant representative promised for the loss of the taken as true upon machine. evidence must be nonsuit with inferences that can be drawn therefrom just instance thаt the of the information that agent company bad caused the fire. trial)
¥e need discuss the case back for a new not, however, (as goes whether the defendant bound such for the promise authority is not out in the party making agreement fully brought evidence. For the same we need not consider the reason, alsо, exceptions by to the plaintiff evidence. that the failure of authorities, sufficient to the above say, upon
the bailee to the admission that it has been made out a which devolved defendant burned, prima case, facie that it bad going discharged forward with proof automo plaintiff’s care while entrusted with custody evidence, inquiry, bile. was the Upon investigated by judg was entitled to have plaintiff men of nonsuit t Reversed. bis J., dissenting: The delivered automobile to Allen, in its and it was fire. repaired be
There is no as to the of the fire or of on the origin I think the rule to these facts applicable defendant. Justice in Hanes v. correctly Shapiro, stаted Associate Walker the better opinion, supported by weight follows: “But C., proving negligence bolds that while the burden authority, shift throughout and does not the burden of plaintiff, has and that where the shown that proceeding condition and the bailee received failed to return be has or returned it case of it, negli be has shown а situation which could not have been gence. pro ‘When of abnormal the onus rests operation causes, duced except tbat was caused without fault.’ prove the defendant the bailee overcomes this prima Bes Unless ipsa loquitur. that the loss or was consistent with the ab jury satisfying part, plaintiff may prevail. sence or fault on as where it showing, however, appears makes such proceeding vis the burden of shifts injured by major, was stolen or back exposing negligent be must show that the bailee was risk of or in to avoid the harm, failing danger e th after it was known. words, may In other *6 SPRING- N. 0.] Jernigan.
Jernigan the burden of estab other, and then first of one party in favor Hale on throughout. on plaintiff in his issue favor lishing 32.” 31 and pp. Bailments, fire —ms major was automobile
It is not disputed and failure showing made by delivery —and, so, prima facie furnishing not recover without he could destroyed, was to return failed to do. he has of negligence, of nonsuit to be sustained. ought theme, judgment As it appears JERNIGAN. BLACKMAN REBECCA JERNIGAN v.
(Filed February, 1920.) Aрpeal Neglect Judgments Set and Error Aside — —Motion —Excusable —Negligence. denying Superior judge, in Court a fact is found as neglect, that, though judgment for excusable motion to set aside defendant impair sick, his the extent faculties to was his illness did attending efficiently case, preventing to his and he had shown him from litigation, fully capablе attending matters of to this and other himself home, generally, was con- at his to which he and to his business interests fined, employ county, present in another he did and that action attorneys attorneys therein, at the and wrote nonresident attention, gave placing no in their hands for time of the matter judgment final, answer, consideratiоn, was for the want of an further eventually atten- facts did not show the Held, taken him: affairs; ordinary prudence his that the fact that of a man of own tion he had not practicing county employed attorneys trial could neglect, question and under this and the further of his considered on case, was indifference to the the motion facts found inexcusable properly denied. ground neglect, of excusable judgment upon MotioN to set aside Connor, J., his consent of Wilson, C., by chambers heard November, parties attorneys, in her certain deed executed complaint The plaintiff alleged and asked it be set aside. The void, her to her husband was for want judgment by default, failed to appear plead, Defendant moved to set aside accordingly. of an was entered answer, defendant, father, who was their neglect for excusable judgment and now deceased. facts: “That the summons the ac- following found the
The court Court of Harnett Superior County the clerk of the tion was issued by term May court, returnable to of said May, 1916, on the 6th of living Blackman then Jernigan, served on the personally whole notes and R. C. above and we think the Corpus Juris, L., cited, present the reason of the is nowhere more subject, thing, doctrine on the set set than from Hanes above clearly quotation Shapiro, out Walicer, Mr. opinion Juris from the Justice we Corpus out accurately think states the correct conclusion. It would if the who has entrusted singular proposition be a his the care of the should find the latter protected without of, any his is in his though discharge stranger) unless the often a shall special knowledge, (who around find evidence of the grope employees of their of their The destruction of