Strang v. Hollowell , 97 N.C. App. 316 ( 1990 )

387 S.E.2d 664 (1990)

Paul J. STRANG
v.
Gene HOLLOWELL d/b/a Hollowell Auto Sales and Steve Jones and Solar Center, Inc.

No. 8910DC690.

Court of Appeals of North Carolina.

February 6, 1990.

William A. Smith, Jr., Cary, for plaintiff-appellee.

Manning, Fulton & Skinner by Robert S. Shields, Jr., Raleigh, for defendant-appellant Hollowell.

WELLS, Judge.

The only issue presented in this appeal is whether defendant Hollowell can be held individually liable for plaintiff's damages. Defendant contends that he was acting as an agent of Hollowell Auto Sales and therefore cannot be held personally liable. Defendant further asserts that, regardless of the fact that plaintiff was unaware that Hollowell Auto Sales was a trade name for Solar Center, Inc., defendant is nevertheless shielded from individual liability because Solar Center, Inc. fulfilled its legal obligation to disclose its relationship with Hollowell Auto Sales by filing an assumed name certificate in Carteret County pursuant to N.C.Gen.Stat. § 66-68 (1985 & Supp. 1989). For the following reasons, we disagree.

When plaintiff gave possession of his automobile to defendant under the consignment contract a bailment for the mutual benefit of bailor and bailee was created. This bailment continued until the automobile was returned to plaintiff in August 1987. Defendant was therefore a bailee of plaintiff's automobile while it was in his custody in Morehead City. See e.g., U.S. Helicopters, Inc. v. Black, 318 N.C. 268, 347 S.E.2d 431 (1986) and cases cited therein. A bailee is obligated to exercise due care to protect the subject of the bailment from negligent loss, damage, or destruction. His liability depends on the presence or absence of ordinary negligence. Millers Mut. Ins. Ass'n of Ill. v. Atkinson Motors, 240 N.C. 183, 81 S.E.2d 416 (1954); Terrell v. H & N Chevrolet Co., 11 N.C.App. 310, 181 S.E.2d 124 (1971). While this obligation arises from the relationship created by the contract of bailment, breach of this contractual duty results in a tort. Millers Mut. v. Atkinson, supra; see also Miller's Mut. Fire Ins. Ass'n of Alton, Ill. v. Parker, 234 N.C. 20, 65 S.E.2d 341 (1951). It is well settled that one is personally liable for all torts committed by him, including negligence, notwithstanding that he may have acted as agent for another or as an officer for a corporation. Palomino Mills, Inc. v. Davidson Mills Corp., 230 N.C. 286, 52 S.E.2d 915 (1949); see also Esteel Co. v. Goodman, 82 N.C.App. 692, 348 S.E.2d 153 (1986), disc. rev. denied, 318 N.C. 693, 351 S.E.2d 745 (1987) (An officer of a corporation who commits a tort is individually liable for that tort, even though acting on behalf of the corporation in committing the act.). Furthermore, the potential for corporate liability, in addition to individual liability, does not shield the individual tortfeasor from liability. Rather, it provides the injured party a choice as to which party to hold liable for the tort. Palomino Mills, supra 230 N.C. at 292, 52 S.E.2d at 919.

Here there is no dispute that plaintiff's automobile was returned to him in a damaged condition. Defendant does not except to the trial court's findings and conclusions that a bailment was created between plaintiff and defendant and that "defendants were negligent in their care and control of the vehicle while it was in their possession." We therefore hold that the trial court correctly ruled that by failing to exercise due care and allowing the automobile to be damaged while in his custody, defendant committed a tort for which he can be held individually liable.

Because the resolution of this case is in tort for negligence, rather than in contract for breach, we need not reach the issue of whether defendant had sufficiently disclosed his agency with Hollowell Auto Sales or with Solar Center, Inc. However, we note that our Supreme Court has said that use of a trade name is not sufficient as a matter of law to disclose the identity of the principal and the fact of agency. Howell v. Smith, 261 N.C. 256, 134 S.E.2d 381 (1964); MAS Corp. v. Thompson, 62 N.C. App. 31, 302 S.E.2d 271 (1983). Likewise, the existence of means by which the fact of agency might be discovered is also insufficient to disclose agency. Id. (Emphasis added).

The judgment of the trial court is

Affirmed.

HEDRICK, C.J., and ARNOLD, J. concur.