I do not agree with the disposition of this appeal contained in the judgment of Mr. Acting Associate Justice Grimball, for whose opinion I have a very high respect. I do not think it can be said with full accuracy that this is a negligence case, as he does; rather, I think, it is a typical case of a bailment for mutual benefit and that the trial judge was correct in his quoted statement and that he properly declined to direct a verdict.
Earlier authorities had established the rule which was so well stated in Fleischman, Morris Co. v. Southern Railway,76 S.C. 237, 56 S.E., 974, 977, 9 L.R.A. (N.S.), 519, by the eminent Justice Woods, afterward a member of the Federal Circuit Court of Appeals, that it soon became a leading case upon the subject and is still so unless now repudiated. Because of its force and clarity, and the express recognition that this State has and enforces a minority rule, the language of Mr. Justice Woods in conclusion of the opinion is here set forth:
"The rule in this state, as indicated by the cases above referred to, is that the bailor must prove delivery to the bailee and his refusal to return as required by the contract of bailment. *Page 313 The burden is then on the bailer to prove that he has not converted the property, and this he may do by showing its loss and the manner of its loss; but by the manner of loss is meant, not only the isolated fact of destruction by fire, or loss by theft or otherwise, but the circumstances connected with the origin of the fire or other cause of loss or injury as far as known to the bailee, and the precautions taken to preventthe loss or injury. From these facts, coupled with any testimony on the subject the bailor may introduce, it is for the jury to say whether the bailee was negligent. This rule is entirely reasonable. The facts surrounding the loss, particularly the precautions taken against it, are usually known to the bailee or ascertainable by him. On the other hand, the owner of the property cannot be supposed to know the details of a warehouseman's business, for he is often hundreds of miles away. With the great modern development of the warehouse business, we venture to think the injustice of the rule which exempts a warehouseman from responsibility to the owner on the bald proof of loss or injury to the goods by fire, by theft, or otherwise, will become more and more apparent. In most cases, to require the owner to assume the burden of showing that the fire or theft was due to the lack of ordinary care is to impose an impossible task and place him more than ever at the mercy of the warehouseman. Weare satisfied, therefore, to adhere to the somewhat exceptionalrule laid down in this state, notwithstanding the greatnumber of opposing authorities in other jurisdictions." (Emphasis added.)
The case has been followed without break and was recently referred to at length and reaffirmed by this court in the case of Gilland v. Peter's Dry Cleaning Co., 195 S.C. 417,11 S.E.2d 857, opinion by Mr. Acting Associate Justice Lide. Search of West's Digest has failed to disclose any case reported from the appellate courts of this State since the year 1851 (and that involved the accidental shooting of a slave on a Pee Dee River steamer) in which verdict was *Page 314 directed for a bailee where he had failed to re-deliver the property in accord with his contract. Surely that is significant.
There may be a conceivable case in which the direction of verdict for such a defendant would be proper, where for instance he showed in the testimony the highest degree of care, referred to by Mr. Justice Grimball, and had employed all reasonably available precautions against the hazard which destroyed the property. But the point is, I think, that when the court undertakes to determine what is reasonable care and what is the highest degree thereof, the term used here, or speculates upon intervening degrees of care or negligence, it is palpably invading the province of the jury which alone, under our Constitution and laws, may find such facts, under proper instructions by the court.
And it is well it is that way for the twelve members of the jury, drawn from all walks of life, are more apt to find and apply by their verdicts just and proper standards of conduct on the part of litigants that are cloistered courts. Certainly they are more familiar with the ordinary business and other transactions of everyday life than are judges and are thereby better able to determine the course of conduct of the average, reasonably prudent man, — the familiar yardstick.
I do not think that the authorities cited by Mr. Justice Grimball warrant departure from the long and well-established rule of this court upon the subject. The text quoted from Kent's Commentaries was written without apparent regard or even knowledge of the rule of our decisions, and certainly the recent case of Albergotti v. Produce Co., 202 S.C. 357,25 S.E.2d 156, is not authority against the respondent here. More or less thrown in the opinion, as has been similarly done above, was the statement that if upon all of the testimony the only reasonable inference would be one of due care on the part of the bailee, verdict might be directed. But the facts and result of that case are authority *Page 315 here to the contrary. There pecan meats were placed in a cold storage plant and delivered damaged. Naturally plaintiffs were at a disadvantage in undertaking to prove negligence, which incidentally they did not have to do, and all that they offered, referred to in the opinion of the court, was that when they visited the storage room they found it damp, the fan was frosted and the (objectionable?) odor of beer was noticeable. On the other hand, defendant's testimony was to the effect that it was a modern refrigeration plant with automatic control of temperature and humidity, serviced by an expert and never out of order, etc. Surely that was a complete negativing of negligence, insofar as the record shows, on the part of the bailee, but nevertheless the course of the court in submitting the question of liability to the jury was approved and their verdict for the plaintiff was allowed to stand, the court expressly recognizing the unusual rule relating to liability in bailment cases in this State and citing the leading case of Fleischman, referring to the authorship of the opinion by Mr. Justice Woods, and rejecting its recent application in Gilland v. Peter's Dry Cleaning Co.,supra.
I do not now think that the unnecessary statement in the opinion in the Albergotti case to the effect that verdict may be directed "upon all the testimony in the case" is entirely accurate for our cases in number hold that the bailor, failing to recover his property in accord with his contract, may prove the latter and rest and the burden is upon the bailee to show to the satisfaction of the jury that he used due care, so a verdict for the bailor may be properly based upon the lack of evidence, as it was in the Gilland-Peter's Dry CleaningCo. case where the bailee-defendant offered no evidence at all. So Justice Grimball's implied criticism of respondent's argument that there were no fire extinguishers and no sprinkler system on the premises, which facts he does not find in the record, should instead, I think, be a criticism of appellant's failure of proof. The verdict of the jury might *Page 316 reasonably have been founded upon the failure of the bailee to offer testimony that these or other precautions were taken, or upon the absence of a watchman, or upon appellant's storage of the valuable bailed property in the most inaccessible part of the building (which is in the record) so it could not be removed from the burning building although other automobiles stored at the front of the building were removed to safety.
This State is not alone in the foregoing well-established rule as will be seen by reference to the encyclopedias and annotations. 6 Am. Jur., Bailments; 8 C.J.S., Bailments; 9 A.L.R., 559, which is an annotation of a case from the Supreme Court of North Carolina, Beck v. Wilkins-RicksCo., 179 N.C. 231, 102 S.E., 313, in which the leading opinion was written by the highly respected former Chief Justice Clark in 1920; 15 A.L.R., 681; 42 A.L.R., 135; 65 A.L.R., 431; and possibly others which have been consulted but not noted. Beginning on page 569 of 9 A.L.R., the South Carolina rule, said to be opposed to the weight of authority, is separately treated and our decisions establishing it fully analyzed.
The discussion in American Jurisprudence is enlightening and seems to support our rule as the modern one. It is said in Volume 6 at page 475: "Thus, a motion for judgment as of nonsuit at the close of plaintiff's evidence is properly refused where the proof introduced has made a prima facie case for the bailor by showing facts from which a jury could reasonably find the existence of a contract of bailment, a delivery of the property to the bailee pursuant thereto, and either the bailee's failure to return it on demand or a return in damaged condition." This was our Gilland-Peter's DryCleaning Co. case, supra, in which this text was cited with approval. And on page 473 of the same volume it is said: "But such a case (referring to the rare cases in which verdict may be directed for the bailee) the question of negligence is one of law for the court only when the facts are *Page 317 not in any event or in any view of the case susceptible to the inference of negligence sought to be deduced therefrom. It cannot be said as a matter of law that there is no evidence to support an inference, if intelligent and fair-minded men might reasonably differ as to the conclusions to be drawn from the evidence. In such a case the question is for the jury." And further on the same page and the next: "While the Court may state the law as to what will constitute a prima facie case for the bailor in an action against the bailee for loss of, or injury to, the bailed property, it should be left to the jury, where the ultimate facts establishing such a case are not conceded or undisputed or the sole possible inference from the evidence, to determine from the evidence whether a prima facie case has been overcome by the defendant's evidence, and whether, from all the facts and circumstances, the defendant is liable." To similar effect is the conclusion at page 339, as follows: "From the foregoing it is evident that, generally speaking, whether or not ordinary care is exercised is a question of fact, or a mixed question of law and fact, for the determination of the jury under proper instructions."
It is worthy of note that the writer of the foregoing text refers to sole possible inference as justifying direction of verdict for the defendant instead of the usual rule of "onlyreasonable inference," — the latter stated by Justice Grimball. This seems to me to closely approximate, if not quite state, our rule, clearly established at least about a century ago and faithfully followed since.
In 8 C.J.S., Bailments, § 50, p. 349, is found the following, with Georgia and Indiana cases noted in support: "There are also authorities broadly holding that showing that the goods were burned, destroyed, or stolen does not overcome the presumption of the bailee's negligence arising from his failure to return them."
I would sustain the trial judge in his rulings and affirm the judgment of the Circuit Court. *Page 318