M. B. HAYNES ELECTRIC CORPORATION
v.
JUSTICE AERO COMPANY.
No. 99.
Supreme Court of North Carolina.
January 15, 1965.Uzzell & DuMont, by Harry DuMont and Robert D. Lewis, Asheville, for plaintiff appellant.
Meekins, Packer & Roberts, by Loren D. Packer, Asheville, for defendant appellee.
PARKER, Justice.
Plaintiff assigns as error the entry of the judgment of involuntary nonsuit.
*683 Plaintiff's evidence tends to show: Plaintiff corporation maintains its principal office and place of business in Asheville, North Carolina. It owned a 1947 Beechcraft Bonanza airplane, which it operated for business purposes. On 12 April 1961 Marion Burton Haynes, Jr., president of plaintiff, flew this airplane from the airport near Asheville to the Raleigh-Durham Airport. N. E. Cannady, Jr., engineer, vice-president, and manager of plaintiff, was a passenger in the airplane. Haynes landed the airplane at the airport, and taxied it over to the service organization adjacent to the terminal building. Haynes went into the service organization and inquired if they had a radio shop. He was advised that it did not, but that there was a radio shop across the field at the Justice Aero Company, the defendant, which was one-fourth to onehalf mile from where the service organization is situate. He and Cannady rented an automobile and drove to the defendant's building. Haynes went inside and spoke with Mr. Justice, who referred him to an employee of defendant, Boiken Roseborough, who was in the rear of the building in defendant's radio shop. He asked Roseborough if he could check the radio in plaintiff's airplane and check out the engine noise, and whether or not this could be done in the next couple of days while he was in Raleigh. Roseborough told him he could check the radio and that he could get the airplane the next day. He told Justice he wanted the airplane fixed. He gave the key to the airplane to Roseborough so he could check the radio, because the radio would not operate in the plane without the key. He told Roseborough where he had left the airplane, gave him its number, and left it to his discretion whether or not the airplane should be moved to defendant's shop.
Plaintiff alleges in his complaint in effect that it delivered its airplane to defendant for repairs. Defendant admits in its answer that "on April 12, 1961, plaintiff delivered to the defendant the said aircraft for the purpose of checking the radio therein, which, as defendant is advised and believes, was picking up motor noise on the flight of said aircraft from Asheville to the Raleigh-Durham Airport."
According to plaintiff's evidence, and according to the allegations in its complaint and the admissions in defendant's answer, the relation of plaintiff and defendant was that of bailor and bailee: defendant in its brief admits this relationship. Under the circumstances here defendant was under a legal dutyit was not an insurerto exercise ordinary care to protect plaintiff's airplane against loss, damage or destruction, and to return it in as good condition as when he received it, and liability for any damages to the airplane while in its possession turns upon the question of the presence or absence of actionable ordinary negligence on its part or on the part of its agent. Dellinger v. Bridges, 259 N.C. 90, 130 S.E.2d 19; Millers Mutual Insurance Ass'n of Illinois v. Atkinson Motors, Inc., 240 N.C. 183, 81 S.E.2d 416; Vincent v. Woody, 238 N.C. 118, 76 S.E.2d 356; Beck v. Wilkins-Ricks Co., 179 N.C. 231, 102 S.E. 313, 9 A.L.R. 554; Hanes v. Shapiro & Smith, 168 N.C. 24, 84 S.E. 33.
Plaintiff's evidence also tends to show the following: When Haynes delivered the airplane to the defendant, "it was in fine performing condition; the wings were in fine condition; the brakes were working fine." About 5:15 p. m. on the next day Roseborough told him over the telephone the airplane had been in a collision. On the following day, April 14, he went to defendant's place of business and saw plaintiff's airplane parked there. He testified: "When I saw the plane on April 14, 1961, it was obvious it had been in a collision, the propeller was damaged beyond repair, the wing was damaged, and it was a sickening sight to me." Haynes testified: "Mr. Roseborough reported the accident to me and he said that they were taxiing the aircraft back and had an accident. He told me that the man that was taxiing the airplane was not a pilot but was checked out *684 in this type aircraft. When I saw him again he told me that he was operating the airplane on the way back. He said that the plane had been taken to Justice Aero and that an A & E mechanic had taken it over." He further testified: "After the accident they said that the brake was faulty."
N. E. Cannady, Jr., testified: "Mr. Roseborough said that he had been taxiing the plane back to the parking area and that it had gotten away from him and hit a tiedown rope and had swung right into the tripacer. * * * He said that the brakes had failed him when he tried to put on the left rud(witness interrupts self) I mean left brake that it had failed him. * * * He said that there was some wind at the time, I don't remember exactly what he said pertaining to the wind but he said there was some wind at the time. * * * He said he had taxied it back into theafter someone had brought it over the previous night and had parked it that he had then taxied it from his area over to the tie-down area to be brought back the next morning to do some work on it. * * * He simply said, I mean he said that on his way when he was taking the plane back it had got away from him and as he tried to apply the left brake to straighten the plane out that it caught on the tie-down rope and swung into a tripacer damaging the tripacer and this plane."
Plaintiff's evidence tends to show that it delivered its airplane to defendant in fine performing condition, with its wings in fine condition, and its brakes in fine working order, for repairs to its radio which was picking up motor noise in flight, that defendant accepted it for the purpose of checking and repairing its radio, that thereafter defendant had possession and control of it, and that the next day defendant had it in its possession and control in a damaged condition. This made out a prima facie case of actionable negligence against defendant, and in the absence of some fatal admission or confession, as against a demurrer to the evidence, or motion to nonsuit, a prima facie showing carries the case to the jury. Dellinger v. Bridges, supra; Millers Mutual Insurance Ass'n of Illinois v. Atkinson Motors, Inc., supra; Vincent v. Woody, supra; Wellington-Sears Co. v. Kerr Bleaching & Finishing Works, 231 N.C. 96, 56 S.E.2d 24; Independent Oil Co. v. Broadfoot Iron Works, 211 N.C. 668, 191 S.E. 508; Hutchins v. Taylor-Buick Co., 198 N.C. 777, 153 S.E. 397; Beck v. Wilkins, supra; Hanes v. Shapiro & Smith, supra.
Plaintiff's evidence further shows: After the airplane was damaged, Haynes instructed defendant to repair it and fix anything needing repair. Defendant kept the airplane in making these repairs about three months. Plaintiff paid defendant for such repairs. But in paying for such repairs, Cannady told Mr. Justice: "[T]hat the payment of the bill didn't constitute our accepting any responsibility of the accident and we intended to pursue the legal liability of his responsibility for the accident." Its evidence also tends to show damages for loss of use of its airplane while defendant was repairing it.
Defendant contends that the judgment of compulsory nonsuit should be sustained, for the reason that plaintiff's evidence rebuts its prima facie case against defendant, in that it affirmatively and clearly and unambiguously shows either that the damage to its airplane occurred in a manner not attributable to defendant's negligence, or that defendant exercised the requisite care in all that it did with respect to the airplane, so that regardless of the manner of occurrence of the damage to the airplane, it could not have been caused by any negligence on defendant's part. With that contention we do not agree.
Interpreting plaintiff's evidence with that degree of liberality required in motions *685 of nonsuit, we think that plaintiff's evidence makes out a prima facie case of actionable negligence against defendant, which its evidence does not affirmatively, clearly and unambiguously rebut, that on the facts in the instant case decision on the motion for nonsuit is controlled by the decisions in Dellinger v. Bridges, supra; Millers Mutual Insurance Ass'n of Illinois v. Atkinson Motors, Inc., supra; Wellington-Sears Co. v. Kerr Bleaching & Finishing Works, supra; Independent Oil Co. v. Broadfoot Iron Works, supra; Hutchins v. Taylor-Buick Co., supra; Beck v. Wilkins, supra; and that the facts here are easily distinguishable from the facts in Swain v. Twin City Motor Co., 207 N.C. 755, 178 S.E. 560; and in Morgan v. Citizens' Bank of Spring Hope, 190 N.C. 209, 129 S.E. 585, 42 A.L.R. 1299.
While plaintiff's evidence makes out a prima facie case of negligence against defendant and is sufficient to carry the case to the jury, the ultimate burden of proof of establishing actionable negligence against defendant is on plaintiff, and remains on it throughout the trial. Dellinger v. Bridges, supra; Millers Mutual Ass'n of Illinois Insurance Co. v. Atkinson Motors, Inc., supra; Millers Mutual Insurance Ass'n of Illinois v. Atkinson Motors, Inc., supra; Speas v. Merchants' Bank & Trust Co. of Winston-Salem, North Carolina, 188 N.C. 524, 125 S.E. 398; Beck v. Wilkins, supra; Hanes v. Shapiro & Smith, supra. What is said in Millers Mutual Insurance Ass'n of Illinois v. Atkinson Motors, Inc., supra, is relevant here: "While it is not required, in the circumstances of this case, that the plaintiffs establish the specific negligent act or omission proximately causing the loss or damage, it is incumbent upon the plaintiffs to satisfy the jury by the greater weight of the evidence that the loss or damage was caused by negligence on the part of the defendant."
The judgment of compulsory nonsuit was improvidently entered and is
Reversed.