#### ERNEST H. VINCENT v. J. K. WOODY and T. H. HERNDON.

(Filed 12 June, 1953.)

1. Bailment § 7—

Evidence tending to show that plaintiff delivered his car to defendant under an agreement that defendant was to have it repaired and sell it for plaintiff, that defendant refused to surrender the ear voluntarily, and that when plaintiff obtained possession of the car by claim and delivery it was in a damaged condition, is held sufficient to make out a prima' facie case and repel defendant’s motion to dismiss as in case of nonsuit.

2. Bailment § 4—

It is the duty of bailee to exercise ordinary care to protect the property bailed against damage and to return the property in as good condition as when he received it.

3. Same—

A bailee is liable for damage to the property bailed proximately resulting from his negligence or the negligence of his agent while the property is in his possession.

4. Bailment § 7—

In bailor’s action to recover for damage to the property while in possession of bailee, a single excerpt from the charge to the effect that the bailee was liable as an insurer for any damage to the property while in his possession or the possession of his agent, will not be held for prejudicial error when the charge construed contextually unambiguously limits the bailee’s liability to damage proximately resulting in the failure of the bailee or his agent to exercise due care.

5. Appeal and Error § 89f—

The charge of the trial court will be read contextually, and an excerpt from the charge will not be held prejudicial, even though it be erroneous when considered out of context, if the charge when considered as a whole presents the law of the case to the jury in such manner as to leave no reasonable cause to believe that the jury was misled or misinformed.

6. Trial § 19—

The weight and credibility of the testimony is for the jury and not the court.

Appeal by defendant Woody from Morris, J., March Term, 1953, DuehaM. No error.

Civil action to recover possession of an automobile and compensation for damages thereto.

On 29 October, 1951, plaintiff, a resident of Person County, delivered his automobile and certificate of title to defendant Woody, a resident of Durham. He alleges and offered evidence tending to show that he did so under an agreement that Woody would find a purchaser and sell the vehicle for him.

*119Defendant admits that tbe automobile was delivered to bim but alleges and offered evidence tending to show that it was delivered to bim as security for money advanced to plaintiff and amounts expended and to be expended in repairing tbe vehicle and putting it in condition for sale. He admits be agreed to find a purchaser after tbe automobile was repaired. In addition, tbe defendant pleads a counterclaim in tbe sum of $284.57 and prays that said sum be adjudged a lien upon said automobile and that tbe automobile be sold to satisfy said lien.

While tbe vehicle was in tbe possession of Woody, it was delivered to defendant Herndon, a mechanic, so that be might make certain repairs and replacements. Plaintiff offered evidence tending to show that while tbe vehicle was in Herndon’s possession, Herndon used it as bis own and caused considerable damage thereto, and parts were removed therefrom, as detailed in bis testimony.

On 11 March, 1952, plaintiff instituted this action and sued out an ancillary writ of claim and delivery under which tbe vehicle was seized and delivered to plaintiff.

In tbe trial below, at tbe conclusion of tbe testimony, tbe court entered judgment of nonsuit as to tbe defendant Herndon, and tbe jury for its verdict found that (1) said automobile was wrongfully detained by defendant Woody, (2) plaintiff is not indebted to Woody in any amount, (3) plaintiff is entitled to recover $150 for tbe wrongful detention of tbe automobile, and (4) plaintiff is entitled to recover of Woody compensation for damages to said automobile in tbe sum of $495 while it was in tbe possession of defendants.

Tbe court set aside tbe verdict on tbe third issue and entered judgment on tbe verdict as thus amended. Defendant Woody excepted and appealed.

G. Horton Poe, Jr., for plaintiff appellee.

Edwards & Sanders for defendant appellant.

Barnhill, J.

Tbe appellant’s exception to tbe denial of bis motion to dismiss tbe action as in ease of involuntary nonsuit is untenable. He admits in bis answer that plaintiff bolds tbe legal title to tbe vehicle in controversy and that be received possession thereof from plaintiff, which possession be has not voluntarily surrendered. Even now be claims tbe right of possession under an agreement that be should retain tbe same as security for tbe debt alleged to be due bim by plaintiff. And plaintiff offered evidence tending to show that while tbe vehicle was in Woody’s possession or in tbe possession of Herndon as bis agent, parts were removed therefrom and it was otherwise materially damaged. This evidence suffices to make out a case for the jury.

*120On this record the defendant was a bailee. As such, it was his duty to exercise ordinary care to protect the property hailed 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 v. Banking Co., 182 N.C. 298, 109 S.E. 6; Insurance Asso. 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. R. R., 171 N.C. 158, 88 S.E. 156; Trustees v. Banking Co., supra; Beck v. Wilkins, 179 N.C. 231, 102 S.E. 313; Falls v. Goforth, supra; Wellington-Sears Co. v. 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 he 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 Hern-don . . .”

Eut 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 *121failure to exercise due care, tbe property was damaged in any amount, tbe plaintiff would have carried tbe burden of tbe fourth issue, entitling bim to nominal damages at least. And tbis fact is so prominent (sic), tbat if tbe defendant placed tbe car in tbe bands of some other person; tbat is to say, if Woody placed tbe car in tbe bands of Herndon, and Herndon failed to use due care and subjected it to abuse; then Woody is answerable to any conduct on tbe part of Herndon tbat caused a decrease in value of tbe automobile; and be, Woody, delivering tbe car to Herndon, would and did make Herndon bis agent.”

Ordinarily tbe presiding judge must instruct tbe jury extemporaneously from such notes as be may bave been able to prepare during tbe trial. To require bim to state every clause and sentence so precisely tbat even when lifted out of context it expresses tbe law applicable to tbe facts in tbe cause on trial with such exactitude and nicety tbat it may be held, in and of itself, a correct application of tbe law of tbe case would exact of tbe nisi prius judges a task impossible of performance. Tbe charge is sufficient if, when read contextually, it clearly appears tbat tbe law of tbe case was presented to tbe jury in such manner as to leave no reasonable cause to believe tbat it was misled or misinformed in respect thereto.

Such is tbe case here. Tbe charge, when read as a composite whole, leaves us with tbe impression tbe jury must bave understood tbat defendant was liable only for those damages to tbe automobile which proximately resulted from bis negligence or tbe negligence of bis agent.

In tbe final analysis, tbe case is one of fact. Tbe evidence in many respects was in sharp conflict. Tbe jury, having beard both sides, has decided tbe issues in favor of plaintiff. Tbe testimony was such tbat it might well bave answered them in favor of tbe defendant. Tbe weight and credibility of tbe testimony was for it, and not for tbe court, to decide. Defendant must noiv abide tbe result.

No error.