VINCENT
v.
WOODY et al.
No. 754.
Supreme Court of North Carolina.
June 12, 1953.*357 Edwards & Sanders, Durham, for defendant-appellant.
C. Horton Poe, Jr., Durham, for plaintiff-appellee.
BARNHILL, Justice.
The appellant's exception to the denial of his motion to dismiss the action as in case of involuntary nonsuit is untenable. He admits in his answer that plaintiff holds the legal title to the vehicle in controversy and that he received possession *358 thereof from plaintiff, which possession he has not voluntarily surrendered. Even now he claims the right of possession under an agreement that he should retain the same as security for the debt alleged to be due him by plaintiff. And plaintiff offered evidence tending to show that while the vehicle was in Woody's possession or in the possession of Herndon as his agent, parts were removed therefrom and it was otherwise materially damaged. This evidence suffices to make out a case for the jury.
On this record the defendant was a bailee. As such, it was his duty to exercise ordinary care to protect the property bailed against damage and to return it in as good condition as it was when he received it. Hence he is liable for any damages to the vehicle in question while in his possession which was proximately caused by his negligence or the negligence of his agent. Falls v. Goforth, 216 N.C. 501, 5 S.E.2d 554; Trustees of Elon College v. Elon Banking & Trust Co., 182 N.C. 298, 109 S.E. 6, 17 A.L.R. 1205; Miller's Mutual Fire Insurance Ass'n v. Parker, 234 N.C. 20, 65 S.E.2d 341.
While the burden rested upon plaintiff to establish his cause of action, it is an established rule in this jurisdiction that evidence tending to show that the bailee failed to return the chattel held in bailment free from damage is prima facie evidence that the loss or damage was due to the negligence of the bailee and is sufficient to repel a motion to dismiss as in case of nonsuit. Perry v. Seaboard Air Line R. Co., 171 N.C. 158, 88 S.E. 156, L.R.A.1916E, 478; Trustees of Elon College v. Elon Banking & Trust Co., supra; Beck v. Wilkins-Ricks Co., 179 N. C. 231, 102 S.E. 313, 9 A.L.R. 554; Falls v. Goforth, supra; Wellington-Sears Co. v. Kerr Bleaching & Finishing Works, 231 N.C. 96, 56 S.E.2d 24.
The plaintiff contended that the vehicle was delivered to Herndon without his knowledge or consent. Woody contended it was delivered by him and plaintiff jointly and plaintiff gave instructions as to the repairs and replacements to be made by the mechanic. The excerpt from the charge of the court directed to the evidence on this phase of the case, to which defendant excepts, lifted out of context, would seem to make defendant an insurer of the safe return of the property bailed in an undamaged condition. In the event "the automobile was placed in possession of Herndon without the knowledge, consent, or permission of the plaintiff; and as a result of the automobile having been placed in his possession, Herndon's, without the knowledge, consent, or permission of the plaintiff, and it was then damaged by Herndon; then Woody would be liable for the damage done to said automobile while in the possession of Herndon. * * *"
But it is axiomatic that the charge must be read and construed contextually. Immediately preceding the instruction to which exception is entered the court had correctly instructed the jury as to defendants' liability. Immediately following, the court emphasized the fact that defendants' liability in any event depended upon the presence or absence of negligence. It then applied the law specifically to the case on trial in the following language:
"So that in this case, if you find that the relationship of bailor and bailee existed between the plaintiff and defendant, the defendant had imposed upon him the responsibility of exercising due care to return the property in the same condition as it was when delivered to him, or to keep the same in good order and condition until bail was made. And if by his failure to exercise due care, the property was damaged in any amount, the plaintiff would have carried the burden of the fourth issue, entitling him to nominal damage at least. And this fact is so prominent (sic), that if the defendant placed the car in the hands of some other person; that is to say, if Woody placed the car in the hands of Herndon, and Herndon failed to use due care and subjected it to abuse; then Woody is answerable to any conduct on the part of Herndon that caused a decrease in value of the automobile; and he, Woody, delivering the car *359 to Herndon, would and did make Herndon his agent."
Ordinarily the presiding judge must instruct the jury extemporaneously from such notes as he may have been able to prepare during the trial. To require him to state every clause and sentence so precisely that even when lifted out of context it expresses the law applicable to the facts in the cause on trial with such exactitude and nicety that it may be held, in and of itself, a correct application of the law of the case would exact of the nisi prius judges a task impossible of performance. The charge is sufficient if, when read contextually, it clearly appears that the law of the case was presented to the jury in such manner as to leave no reasonable cause to believe that it was misled or misinformed in respect thereto.
Such is the case here. The charge, when read as a composite whole, leaves us with the impression the jury must have understood that defendant was liable only for those damages to the automobile which proximately resulted from his negligence or the negligence of his agent.
In the final analysis, the case is one of fact. The evidence in many respects was in sharp conflict. The jury, having heard both sides, has decided the issues in favor of plaintiff. The testimony was such that it might well have answered them in favor of the defendant. The weight and credibility of the testimony was for it, and not for the court, to decide. Defendant must now abide the result.
No error.