C. A. PENNINGTON
v.
Warren L. STYRON, t/a Morehead City Yacht Basin.
No. 112.
Supreme Court of North Carolina.
April 12, 1967.*779 George H. McNeill, Morehead City, for plaintiff appellee.
Wheatly & Bennett, Beaufort, for defendant appellant.
PLESS, Justice.
The plaintiff and the defendant agree that the plaintiff stored his boat with the defendant, and that the defendant was to keep it tied up, pump the rain water out of it, and generally to protect it during the winter. This arrangement created the relation of bailor and bailee between plaintiff and defendant. Nothing else appearing, the contract did not constitute defendant an insurer of the safety of plaintiff's boat. The relationship merely imposed upon defendant the duty to exercise ordinary care to protect plaintiff's boat against loss, damage, or destruction, and to return it in as good condition as when he received it. Liability for any damage to the boat while in defendant's possession would depend upon the presence or absence of ordinary negligence on the part of defendant. Haynes Electric Corp. v. Justice Aero Co., 263 N.C. 437, 139 S.E.2d 682.
"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." Millers Mutual Insurance Ass'n of Illinois v. Atkinson Motors, Inc., 240 N.C. 183, 185, 81 S.E.2d 416, 418.
There was a definite conflict in the pleadings and evidence of the parties as to the conditions under which the plaintiff left his yacht with the defendants, and as to the circumstances under which the boat was moved from an open slip to a covered one where it was damaged. The plaintiff had alleged that he left the BOB CAT under the defendant's exclusive care and control as a bailee for hire, and the defendant had denied it. The plaintiff testified that he had not given consent to the defendant to move the boat and did not know it was over there until the defendant called him and told him the shed had fallen in. However, the evidence of the defendant is to the contrary, as set forth in the statement of facts.
If the jury should find there was either an express or implied understanding between plaintiff and defendant that plaintiff's boat could be moved from one slip to another at defendant's convenience, defendant's duty remained one of ordinary care, and he would be liable only for failure to exercise such care. If, however, it should find that defendant had agreed to keep plaintiff's boat in a particular place, that is, in the slip in which plaintiff had left it, and that defendant had no authority to move the boat, defendant would be liable for the damage to it irrespective of negligence.
"It is generally held that if the bailee, without authority, deviates from the contract as to the place of storage or keeping of the property, and a loss occurs which would not have occurred had the property been stored or kept in the place agreed upon, he is liable, even though he is not negligent. This rule regards the bailee as assuming, by his breach of contract, the risk of any injury which would not have resulted had he not committed such breach, even though the place to which he moves the goods is equally safe and proper for the purpose. Where his contract is to keep the property in a particular place, the bailee's liability has been held to be the same notwithstanding he was compelled by force of circumstances to place it elsewhere and in so *780 doing was not guilty of any negligence. In such a case the view has been taken that it is the bailee's duty to notify the bailor and to obtain his consent to the change if he is to avoid liability." 8 Am. Jur.2d, Bailments § 191.
An unauthorized deviation would therefore make the defendant's liability absolute, and the plaintiff would not be required to prove negligence of any type or degree.
Under the bailor-bailee theory ordinary negligence is the test. We therefore hold that the following excerpts from the charge were not applicable and were likely to be confusing to the jury, which entitles the defendant to a new trial.
In the charge the court said: "The defendant obligated himself when he moved the boat to a greater degree of care than he would have in compliance with the original contract, that is, keeping the boat in the open * * * he put himself in the position of a bailee for his own benefit * * * thus slight negligence (emphasis ours) on his part could not relieve him of liability, or, to put it in other words: from the time he moved the boat he was required to use extraordinary care (emphasis ours) to see that the subject of the bailment was not damaged."
The defendant sought to show his custom of moving the boats from one slip to another, but the court properly excluded this evidence since no foundation had been laid for it. To be admissible in evidence "a custom must be shown to have been so general that a contracting party will be presumed to have had knowledge of it, in order to make it a part of the contract, in the absence of evidence that he had actual knowledge of it." 8 Am.Jur.2d Bailments § 126 (1963). A fuller discussion will be found in Universal Oil & Fertilizer Co. v. Burney, 174 N.C. 382, 387, 93 S.E. 912.
New Trial.