McKissick v. R. Connelly Jewelers, Inc.

254 S.E.2d 211 (1979)

41 N.C. App. 152

Evelyn W. McKISSICK v. R. CONNELLY JEWELERS, INC.

No. 7814DC669.

Court of Appeals of North Carolina.

May 1, 1979.

*213 Major S. High, Greensboro, for plaintiff-appellant.

Roger S. Upchurch, Durham, for defendant-appellee.

PARKER, Judge.

Plaintiff contends that the trial judge erred, first, in failing to find that the defendant had a duty either to carry insurance to protect plaintiff's property or to inform plaintiff there was no such insurance, and, second, in failing to find defendant negligent in caring for plaintiff's property. We find no error in either respect.

Defendant's possession of plaintiff's rings was that of a 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." Insurance Co. v. Motors, Inc., 240 N.C. 183, 184, 81 S.E.2d 416, 418 (1954); accord, Swain v. Motor Co., 207 N.C. 755, 178 S.E. 560 (1935); Morgan v. Bank, 190 N.C. 209, 129 S.E. 585 (1925). Unless made so by statute or by express contract, the bailee is not an insurer and is liable only for such loss or damage to the property as proximately results from his failure to exercise ordinary care for its safe keeping. Insurance Co. v. Motors, Inc., supra; Beck v. Wilkins, 179 N.C. 231, 102 S.E. 313 (1920). 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 or it is admitted 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. Wellington-Sears Co. v. Finishing Works, 231 N.C. 96, 56 S.E.2d 24 (1949). But even when there is such a prima facie case of negligence, the ultimate burden of proof of establishing actionable negligence on the part of the defendant is on plaintiff, and this burden remains on the plaintiff throughout the trial. Electric Corp. v. Aero Co., 263 N.C. 437, 139 S.E.2d 682 (1965).

Applying these well established principles to the present case, defendant was not an insurer of plaintiff's property. On competent evidence the trial court found that there was no contract between the parties requiring defendant to purchase insurance. Not being required either by law or by contract to insure plaintiff's property, defendant was under no duty to inform plaintiff that there was no such insurance. The burden was on the plaintiff to show that defendant failed to exercise due care in safe guarding her property. She has failed to carry that burden with the finder of the facts, who on competent evidence has found that defendant used due care and that plaintiff's loss occurred as result of a burglary and without fault on the part of the defendant.

The judgment appealed from is

Affirmed.

HEDRICK and CARLTON, JJ., concur.