Flexlon Fabrics, Inc. v. Wicker Pick-Up & Delivery Service, Inc.

250 S.E.2d 723 (1979) 39 N.C. App. 443

FLEXLON FABRICS, INC.
v.
WICKER PICK-UP AND DELIVERY SERVICE, INC.

No. 7815SC159.

Court of Appeals of North Carolina.

January 16, 1979.

William L. Durham, Burlington, for plaintiff-appellant.

Henson & Donahue by Perry C. Henson and Perry C. Henson, Jr., Greensboro, for defendant-appellee.

MORRIS, Chief Judge.

Plaintiff's sole assignment of error concerns the entry of judgment upon defendant's motion for a directed verdict at the conclusion of plaintiff's evidence. The specific grounds of the motion were: (1) Plaintiff's failure to offer any evidence of negligence, (2) Contributory negligence as a matter of law, and (3) Failure to offer any evidence of damages.

In reviewing the propriety of the entry of the directed verdict, we will consider only those grounds argued by defendant to the trial court as the basis for its motion. Worrell v. Hennis Credit Union, 12 N.C.App. 275, 182 S.E.2d 874 (1971); see generally 9 Wright and Miller, Federal Practice and Procedure: Civil § 2533 n. 83 and § 2536 n. 26.

The ultimate question for resolution concerns whether plaintiff's evidence as it appears in the record before us was sufficient to withstand defendant's motion for a directed verdict. The threshold inquiry in this case, however, concerns whether a bailor-bailee relationship existed between plaintiff and defendant. If plaintiff's evidence sufficiently establishes such a relationship, then upon a showing that plaintiff delivered to the bailee undamaged goods which were returned in a damaged condition, the law presumes the bailee was negligent and, nothing else appearing, plaintiff is entitled to go to the jury on the question of defendant's negligence.^[1]Insurance Co. v. Cleaners, 285 N.C. 583, 206 S.E.2d 210 (1974).

The bailor has the burden of establishing the existence of a bailor-bailee relationship. Troxler v. Bevill, 215 N.C. 640, 3 S.E.2d 8 (1939); Clott v. Greyhound Lines, Inc., 9 N.C.App. 604, 177 S.E.2d 438 (1970), rev'd on other grounds, 278 N.C. 378, 180 S.E.2d 102 (1971). A bailment is created upon the delivery of possession of goods and the acceptance of their delivery by the bailee. Freeman v. Service Co., 226 N.C. 736, 40 S.E.2d 365 (1946). Delivery by the bailor relinquishing exclusive possession, custody, and control to the bailee is sufficient. Wells v. West, 212 N.C. 656, 194 S.E. 313 (1937); see generally Anno., 1 A.L.R. 394 (1919). An acceptance is established upon a showing directly or indirectly of a voluntary acceptance of the goods under an express or implied contract to take and redeliver them. Anno., 1 A.L.R. at 399-400.

We find ample evidence of delivery and acceptance in this case to establish a bailment. See Pennington v. Styron, 270 N.C. 80, 153 S.E.2d 776 (1967); Insurance Co. v. Motors, Inc., 240 N.C. 183, 81 S.E.2d 416 (1954); Swain v. Motor Co., 207 N.C. 755, 178 S.E. 560 (1935). Plaintiff's agent, as she had done four times previously, called defendant and requested that he send a tractor to tow the loaded trailer to Belmont Village. Marina Brooks, plaintiff's office manager and secretary-treasurer, testified, "I told him that the machines were heavy and that they were delicate, important to us, and that it was our entire operation and they would have to be very careful". Defendant, through its agents, subsequently responded and proceeded to tow the trailer as requested to Belmont Village. The defendant voluntarily and knowingly accepted exclusive control of the trailer and its contents from the time it left plaintiff's Tucker Street plant until the intended delivery at Belmont Village. The safety of the leased trailer and the machines lay exclusively with defendant while under tow by its agent.

"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 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." Insurance Co. v. Cleaners, 285 N.C. at 585, 206 S.E.2d at 212; quoting Insurance Co. v. Motors, Inc., 240 N.C. at 185, 81 S.E.2d at 418.

Although the presumption of negligence does not entitle plaintiff to a directed verdict if defendant fails to produce evidence of his own due care, defendant risks an adverse jury verdict if it fails to introduce evidence of its own due care. Insurance Co. v. Motors, Inc., supra. There is no doubt that on this record there may be many explanations for the overturning of the tractor and trailer. Admittedly, plaintiff may have improperly loaded the trailer. On the other hand, defendant's driver may have attempted to negotiate the turn too swiftly, the truck's brakes may have been inadequate, the intervening negligence of a third party may have caused the damage, or a combination of any number of other unexplained factors may have caused the trailer to overturn. The rule establishing a prima facie case exists precisely because of the likelihood of such unforeclosed possibilities. As our Supreme Court has explained:

"The fact that [plaintiff] could have no knowledge of such matters, while the defendant could and should have full knowledge of these matters, indicates the reason underlying the rule as to mode of proof in such bailments. The prima facie rule is invoked when the plaintiff's evidence discloses an unexplained failure to return the bailed property or an unexplained destruction of or damage to the bailed property while in the bailee's possession and control." Insurance Co. v. Motors, Inc., 240 N.C. at 186, 81 S.E.2d at 419.

As in Insurance Co. v. Motors, Inc., supra, the record leaves the cause of the damage suffered by plaintiff (and defendant) unexplained. Plaintiff, nothing else appearing, is entitled to have the case submitted to the jury for resolution.

Defendant contends that plaintiff's own evidence establishes that plaintiff was contributorily negligent as a matter of law in that the knitting machines were improperly loaded causing the trailer and tractor to overturn. Taking the evidence in the light most favorable to the plaintiff, as we must upon review of a directed verdict for defendant, we disagree. The established rule is that a directed verdict for a defendant on the grounds of contributory negligence may only be granted when evidence taken in light most favorable to plaintiff establishes his negligence so clearly that no other reasonable inference may be drawn from that evidence. Clark v. Bodycombe, 289 N.C. 246, 221 S.E.2d 506 (1976). Plaintiff's evidence tends to show that care was taken by loading the machines by chocking the base of each machine in order to prevent shifting and by packing articles around the machines for added stabilization. However, the testimony of plaintiff's own expert would permit, but not compel, the jury to find that reasonable care required that the machines be packed in cases and bolted to the floor of the trailer, or that they be placed on a pair of skids which are bolted to the bed of the truck.

Based upon the evidence in this record we cannot say that the only reasonable inferences to be drawn from the evidence point to contributory negligence on the part of plaintiff. Plaintiff, upon this record, is not guilty of contributory negligence as a matter of law.

Defendant's final argument in support of his directed verdict, asserting that plaintiff presented no evidence of damages, is, upon the face of the record, clearly without merit.

Because we find that defendant was not entitled to a directed verdict upon any of the grounds asserted before the trial court, the judgment entering a directed verdict must be

Reversed.

PARKER and HARRY C. MARTIN, JJ., concur.

NOTES

[1] A similar rule applies to common carriers. See G.S. 62-202 et seq. Because there is no evidence in the record to the contrary, we assume for purposes of this decision that defendant was not acting in a common carrier capacity. See also Olan Mills v. Executive Terminal, Inc., 273 N.C. 519, 160 S.E.2d 735 (1968).