#### MILLERS MUTUAL INSURANCE ASSOCIATION OF ILLINOIS and CENTRAL MUTUAL INSURANCE COMPANY v. ATKINSON MOTORS, INC.

(Filed 28 April, 1954.)

1. Bailment § 1—

Where the purchaser of an automobile returns it to the dealer for the five-hundred-mile checkup to which he is entitled under the contract of sale, such delivery constitutes a bailment for the mutual benefit of the bailor and the bailee.

2. Bailment § 4—

A bailee for hire is not an insurer, but is under legal duty imposed by law, irrespective of the contract, to exercise due care to protect the subject of the bailment from loss, damage or destruction, and may be held liable for damages resulting from negligent failure to perform this duty.

3. Bailment § 7—

The bailor makes out a *prima facie*case of actionable negligence of a bailee for hire upon showing that he delivered the property in good condition to the bailee, that the bailee accepted it and thereafter had exclusive possession and control of the property, and failed to return it, or returned it in a damaged condition.

4. Same—

Plaintiff’s evidence tended to show that the purchaser of an automobile delivered it to the dealer for the five-hundred-mile checkup, that the purchaser did not again see the car until the next day when it had been damaged by fire, although the ears on either side of it were not burned, and that in the interim the ear was in the exclusive possession and control of the dealer. *Held:*Under the rule applicable to bailments, plaintiff made out a *prima facie*case sufficient to be submitted to the jury, notwithstanding the absence of any evidence of any facts or circumstances relating to the fire or tending to show any particular acts of negligence.

5. Evidence § 7e—

A *prima facie*case does not relieve plaintiff of the burden of proof nor create any presumption in his favor, but merely entitles him to have the issue submitted to the jury, and defendant, upon such showing by plaintiff, may elect to introduce no evidence, in which event he admits nothing but simply takes the risk of an adverse verdict, or he may offer evidence in explanation or exoneration.

Appeal by plaintiffs from *Rudisül, J.,*1 March, 1954, Regular Term, Of MECKLENBURG.

In October, 1952, Charles *'W.*Connelly purchased from defendant a new 1953 Dodge Coronet Coupe. The defendant was and is engaged in business in Charlotte, N. 0., selling, repairing and servicing automobiles. On 12 November, 1952, Connelly took his new car to defendant’s service department and left it with defendant’s authorized agents for the 500 mile general check-up and for repairs and servicing. Defendant accepted *184the automobile for these purposes, thereby obtaining full possession and control thereof and of specified articles of personal property owned by Connelly and then kept in the trunk compartment. When Connelly returned the next morning, 13 November, 1952, he found that his automobile and personal property had been damaged by fire. These facts are admitted in the pleadings.

Evidence of plaintiffs, predicated upon sufficient allegations, tends to show that the purchase price of Connelly’s car was around $3,300.00; that its reasonable market value immediately before the fire was $2,-988.43; that its reasonable market value immediately after the fire was $1,000.00; that the plaintiff, Millers Mutual Insurance Association of Illinois, which had insured the car against loss by fire, took over the damaged car and paid $2,988.43 to Connelly in discharge of its obligation as insurer; and that the plaintiff, Central Mutual Insurance Company, which had insured the contents of the car against loss by fire, paid Con-nelly $285.00 in discharge of its obligation as insurer.

The plaintiffs sue for damages in the amount of $1,988.43 and $285.00, respectively, under the doctrine of subrogation. In addition to the facts stated above, the plaintiffs allege in general terms that the defendant negligently allowed the car to be burned, failed to watch and safeguard it, and failed to exercise due care to guard, properly repair and deliver it to Connelly in as good or better condition than when delivered to defendant. No facts are alleged bearing upon what happened on the occasion of the fire or bearing upon the cause of the fire.

At the close of the plaintiffs’ evidence, the trial judge, upon the defendant’s motion, entered judgment of involuntary nonsuit, dismissing the action. Plaintiffs excepted and appealed.

*William H. Booe for plaintiffs, appellants.*

*Pierce •& Blalceney, R. E. Wardlow, and G. W. Bundy for defendant, appellee.*

Bobbitt, J.

The testimony of Connelly tends to show that when he delivered his car to defendant for the general 500 mile check-up, he called attention to a number of specific items, *e.g.,*the cigarette lighter was out, the radio had a hum in it, etc.; also, that defendant was to make such repairs as part of the consideration for the purchase price paid by him.

Under these circumstances, the defendant’s possession and control was that of bailee, under a bailment for the mutual benefit of the bailor and the bailee; and in such case the duty of the bailee is to exercise due care and his liability depends upon the presence or absence of ordinary negligence. *Hanes v. Shapiro,*168 N.C. 24, 84 S.E. 33; *Hutchins v. Taylor-Buick Co.,*198 N.C. 777, 153 S.E. 397; 8 C.J.S. p. 269, Bailments, sec. *18527; 6 Am. Jur., p. 361, Bailments, see. 248. Ordinarily, unless made so by statute or by express contract, the bailee is not an insurer. He is liable only for negligent loss or damage to property. *Beck v. Wilkins,*179 N.C. 231, 102 S.E. 313; 8 C.J.S. 262, Bailments, sec. 26; 6 Am. Jur. 345, Bailments, see. 242; Anno. 16 A.L.B. 2d 802. The bailee’s obligation to exercise due care to protect the subject of the bailment from loss, damage or destruction arises from the relationship so created by the contract of bailment. While the relationship so created is basic, the legal duty is not a term of the contract; rather, it is imposed by law. *Insurance*Asso. *v. Parker,*234 N.C. 20, 65 S.E. 2d 341.

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. Hanes *v. Shapiro, supra; Perry v. R. R.,*171 N.C. 158, 88 S.E. 156, L.R.A. 1916E 478; *Beck v. Wilkins, supra; Trustees v. Banking Co.,*182 N.C. 298, 109 S.E. 6, 17 A.L.R. 1205; *Morgan v. Bank,*190 N.C. 209, 129 S.E. 585; *Hutchins v. Taylor-Buick Co., supra; Swain v. Motor Co.,*207 N.C. 755, 178 S.E. 560; *Oil Co. v. Iron Works,*211 N.C. 668, 191 S.E. 508; *Falls v. Goforth,*216 N.C. 501, 5 S.E. 2d 554; *Wellington-Sears Co. v. Finishing Works,*231 N.C. 96, 56 S.E. 2d 24; *Bennett v. R. R.,*232 N.C. 144, 59 S.E. 2d 598; 16 A.L.R. 2d p. 805, *et seq.*

However, judgments of involuntary nonsuit were held proper in *Morgan v. Bank, supra,*and *Swain v. Motor Co., supra.*For in *Morgan v. Bank, supra,*it appeared affirmatively from undisputed evidence that plaintiff’s bonds had been stolen by burglars, who blew open the vault with high explosives and broke into the safety deposit boxes by use of a sledge hammer and cold chisel, there being no evidence of negligence on the part of the defendant. And in *Swain v. Motor Co., supra,*it appeared affirmatively from undisputed evidence that a third party had stolen plaintiff’s car under circumstances which negatived negligence on the part of defendant. *Kelley v. Capital Motors,*28 S.E. 2d 836, a South Carolina decision cited by defendant, is distinguishable on like grounds.

Here, the plaintiffs’ evidence does not disclose the facts and circumstances relating to the burning of his car and its contents. Connelly testified that the defendant’s building was of cement and steel construction, fire resistant, equipped with sprinkler system, etc., and that the garage was modern, up-to-date, safe and first-class. In his opinion, the fire came from the inside of the car. Also, upon cross-examination, he stated that he did not know of anything the defendant failed to do with respect to proper care of his ear. While this evidence is favorable to defendant, the fact remains that Connelly left the car with defendant about 8:30 a.m. on *186tbe morning of 12 November, 1952, and did not see it again until tbe morning of 13 November, 1952, after tbe fire. In tbe meantime, it bad been in tbe exclusive possession and control of defendant. Tbe record is silent as to wbat was done to or with tbe car during tbis period. Was tbe general cbeck-up made? Wbat was its condition? Was tbe electrical system faulty? Were repairs made? Had tbe car been driven out of tbe garage ? If so, by whom and under wbat circumstances ? When did tbe fire occur ? Tbe fact that Connelly could have no knowledge of such matters, while tbe defendant could and should have full knowledge of these matters, indicates the reason underlying tbe rule as to mode of proof in such bailments. Tbe *prima facie*case rule is invoked when tbe plaintiff’s evidence discloses an unexplained failure to return tbe bailed property or an unexplained destruction of or damage to tbe bailed property while in tbe bailee’s possession and control. Here, neither tbe allegations nor tbe evidence purport to particularize any facts or circumstances relating to the fire upon which negligence is predicated.

Here, as was true in *Hutchins v. Taylor-Buick Co., supra,*only tbe one car burned. Too, as in that case, Connelly’s car was between two other cars, which did not burn. Tbe facts in tbe two cases are quite similar. It would seem that tbis case is stronger for tbe plaintiffs’ position for here the car was left for a general cbeck-up, repairs and servicing while in that case tbe ear was left for storage only. Be that as it may, *Hutchins v. Taylor-Buick Co., supra,*controls decision here.

Ordinarily, in a negligence case, it is incumbent upon plaintiff to allege and prove facts constituting actionable negligence; and, when tbe evidence fails to disclose actionable negligence as alleged, nonsuit is proper. Conjecture and surmise will not suffice. Appellant cites many cases involving tbis well settled principle. Decision in several of tbe cases cited turns upon tbe applicability or nonapplicability of tbe doctrine of *res ipsa loquitur,*which, if applicable, makes out a *prima facie*case akin to that involved here. (See *White v. Hines,*182 N.C. 275, 109 S.E. 31.) In tbe cases cited tbe doctrine *res ipsa loquitur*was held inapplicable; and tbe plaintiff was required to allege and prove bis ease under tbe ordinary rule. Here plaintiffs invoke a long established rule applicable to bailments. Tbe evidence was sufficient under tbis rule to repel tbe defendant’s motion for judgment of involuntary nonsuit.

While it is not required, in tbe circumstances of tbis case, that tbe plaintiffs establish tbe specific negligent act or omission proximately causing tbe loss or damage, it is incumbent upon tbe plaintiffs to satisfy tbe jury by tbe greater weight of tbe evidence that tbe loss or damage was caused by negligence on tbe part of tbe defendant. *Ross v. Cotton Mills,*140 N.C. 115, 52 S.E. 121; *Howard v. Texas Co.,*205 N.C. 20, 169 S.E. 832.

*187By analogy to tbe doctrine of *res ipsa loquitur,*plaintiffs are not relieved of tbe burden of proof nor is any presumption raised in tbeir favor. Indeed, it bas been stated *(Ross v. Cotton Mills, supra)*tbat tbe trial judge should make no reference to tbe expressions *"prima facie*case” or “presumptive evidence;” rather it is for tbe jury to say, upon tbe facts and tbe circumstances shown by plaintiff’s evidence, whether negligence should be inferred, that is, whether upon all the evidence tbe plaintiff bas established actionable negligence.

When tbe facts in evidence make out a *prima facie*case, it is one for submission to the jury. As stated by *Connor, J.,*in *Ross v. Cotton Mills, supra:*“The defendant may, or may not, introduce evidence as it is advised. By failing to do so, it admits nothing, but simply takes tbe risk of nonpersuasion. This is what is meant by going forward with testimony. He, by this course, says tbat be is willing to go to tbe jury upon tbe plaintiff’s evidence.” If tbe defendant elects to offer evidence tending to explain tbe cause of tbe fire, tbe reasonableness of tbe explanation is for tbe jury. *Springs v. Doll,*197 N.C. 240, 148 S.E. 251. If tbe defendant offers evidence tending to show what happened with reference to tbe car while in its possession as bailee, tbe credibility of such evidence is for the jury. If the evidence offered by the defendant, assuming credibility, would exonerate tbe defendant, it would be entitled to a peremptory instruction thereon. *Travis v. Duckworth,*237 N.C. 471, 75 S.E. 2d 309. Tbe significance of *"prima facie*case” has been stated clearly and often. *Speas v. Bank,*188 N.C. 524, 125 S.E. 398; *Hunt v. Eure,*189 N.C. 482, 127 S.E. 593; *Vance v. Guy,*224 N.C. 607, 31 S.E. 2d 766; N. C. Evidence, Stansbury, Section 203.

If tbe defendant exercised due care in handling and in beeping the Connelly car, no liability devolves upon it. It is liable only if tbe loss or damage was caused by its negligence.

Tbe ease here presented is one for tbe jury under appropriate instructions. Hence, the judgment of involuntary nonsuit at tbe close of plaintiffs’ evidence is

Eeversed.