Ace Chemical Corp. v. DSI Transports, Inc.

• Decision Date: 21 June 1994
• Docket Number: No. 9326SC557,9326SC557
• Citation: 446 S.E.2d 100,115 N.C.App. 237
• Court: North Carolina Court of Appeals
• Parties: ACE CHEMICAL CORPORATION, Plaintiff, v. DSI TRANSPORTS, INC., Defendant.

Page 100

446 S.E.2d 100

115 N.C.App. 237

ACE CHEMICAL CORPORATION, Plaintiff, v. DSI TRANSPORTS, INC., Defendant.

No. 9326SC557.

Court of Appeals of North Carolina.

June 21, 1994.

Waggoner, Hamrick, Hasty, Monteith and Kratt by S. Dean Hamrick, Charlotte, for plaintiff-appellee.

Golding, Meekins, Holden, Cosper & Stiles by Lawrence W. Jones, Charlotte, for defendant-appellant.

EAGLES, Judge.

Defendant appeals from the trial court's judgment granting plaintiff's motion for judgment notwithstanding the verdict and directed verdict. Plaintiff cross appeals the trial court's order granting defendant's motion for summary judgment on plaintiff's unfair and deceptive practices claim. After careful review of the record and briefs, we reverse the trial court's judgment granting plaintiff's motion for judgment notwithstanding the verdict on the issue of plaintiff's contributory negligence and remand to the trial court to enter judgment in accordance with the jury's verdict. We also reverse the trial court's judgment granting plaintiff's motion for directed verdict on plaintiff's breach of contract claim and remand to the trial court for a new trial on that issue. Finally, we affirm the trial court's order granting defendant's motion for summary judgment on plaintiff's unfair and deceptive practices claim.

I. DEFENDANT'S APPEAL

A.

Defendant contends that the trial court erred in granting plaintiff's motion for judgment notwithstanding the verdict on the issue of plaintiff's contributory negligence. We agree.

A motion for judgment notwithstanding the verdict is essentially a renewal of an earlier motion for directed verdict. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 368-69, 329 S.E.2d 333, 337 (1985). Like a motion for directed verdict, a motion for judgment notwithstanding the verdict tests the legal sufficiency of the evidence to take the case to the jury. Taylor v. Walker, 84 N.C.App. 507, 509, 353 S.E.2d 239, rev'd on other grounds, 320 N.C. 729, 360 S.E.2d 796 (1987). The motion for judgment notwithstanding the verdict "shall be granted if it appears that the motion for directed verdict could properly have been granted." G.S. 1A-1, Rule 50(b). Accordingly, the test for determining the sufficiency of the evidence is the same under both motions. Dickinson v. Pake, 284 N.C. 576, 584, 201 S.E.2d 897, 903 (1974).

In considering a motion for judgment notwithstanding the verdict, all the evidence must be considered in the light most favorable to the nonmoving party. Smith v. Price, 315 N.C. 523, 527, 340 S.E.2d 408, 411 (1986). The nonmovant is given the benefit of every reasonable inference that may legitimately be drawn from the evidence and all contradictions are resolved in the nonmovant's favor. Id. If there is more than a scintilla of evidence supporting each element of the nonmovant's case, the motion for directed verdict and any subsequent motion for judgment notwithstanding the verdict should be denied. Broyhill v. Coppage, 79 N.C.App. 221, 226, 339 S.E.2d 32, 36 (1986); Abels v. Renfro Corp., 335 N.C. 209, 215, 436 S.E.2d 822, 825 (1993).

Defendant contends that there was sufficient evidence of plaintiff's contributory negligence to support the jury's verdict. We agree. First, defendant's dispatcher, Scott Willman, testified that he telephoned plaintiff's president, Mr. Clein, on the day defendant's tanker was to be delivered to plaintiff's facility in Charlotte and asked him if the "Hampene 100 [had] to be on an insulated trailer." Willman testified that Clein answered, "[N]o, just any kind of trailer that [defendant] had available ... that was clean was fine with him." Clein testified, however, that he knew that Hampene 100 could not be transported in "just any kind of trailer ... that was clean." Clein testified that he knew that the MSDS sheets for Hampene 100 provided that only stainless steel, polyethylene, or plastic-lined containers should be used for the handling and storage of Hampene 100. A reasonable juror could conclude that Clein was negligent in not clearly specifying to Willman the type of trailer that would be suitable to transport the Hampene 100. Similarly, a reasonable juror could conclude that Clein was negligent in responding to Willman that "just any kind of trailer ... that was clean was fine" and that Clein should have clearly specified to Willman the type of trailer that would be suitable to transport the Hampene 100.

Second, plaintiff's employee, Matthew L. Doggett, loaded the Hampene 100 into defendant's tanker without ascertaining whether it was the proper type of tanker for shipping Hampene 100. Doggett testified that he loaded the Hampene 100 into defendant's tanker on 12 June 1990 and that he checked defendant's tanker to make sure that it was clean. Doggett also testified, however, that as far as he was concerned on 12 June 1990, his only duty was to make sure defendant's tanker was clean and that it was not his responsibility to determine whether defendant's tanker was an aluminum or stainless steel tanker. Doggett testified that he had no knowledge prior to 12 June 1990 that Hampene 100 could not be shipped in an aluminum tanker and that neither his supervisor, nor Mr. Clein, nor any other employee at plaintiff's facility told him to check and make sure that each shipment of Hampene 100 was loaded into a stainless steel tanker.

Finally, plaintiff's bill of lading, (Plaintiff's Exhibit 3) prepared by plaintiff and given to defendant's driver, states that "This certifies the above named materials and products, ... are properly classified, described, packaged, marked and labeled and in proper condition for transportation according to the applicable regulations of the Department of Transportation." The signature line below this statement was not signed by any of plaintiff's employees. A reasonable juror could infer from this evidence that none of plaintiff's employees checked to see if defendant's tanker was a proper tanker for shipping Hampene 100. In fact, defendant's attorney attempted to make this inference in his cross examination of plaintiff's president, Mr. Clein.

Q. [I]s not this form prepared by [plaintiff]?

A. Yes.

Q. There is a signature line for an [ ] employee [of plaintiff]?

A. That's correct.

Q. And it certifies that it has been properly contained for shipment, is that correct?

A. Right.

Q. And no one signed it, isn't that right?

A. That's correct.

Q. So presumably no one bothered to check, is that right?

A. I don't say that. I just say that it wasn't signed. I'm not going to go into details as to why it wasn't signed.

We conclude that there is more than a scintilla of evidence here supporting the jury's verdict that plaintiff was contributorily negligent. Accordingly, we reverse the judgment of the trial court granting plaintiff's motion for judgment notwithstanding the verdict and awarding plaintiff damages in the amount of $16,480.60 and remand to the trial court to enter judgment on the jury's verdict.

B.

Defendant also contends that the trial court erred in granting plaintiff's motion for directed verdict on plaintiff's breach of contract claim. We agree.

A directed verdict should never be granted when there is conflicting evidence on contested issues of fact. Northern Nat'l Life Ins. Co. v. Lacy J. Miller Mach. Co., 311 N.C. 62, 69, 316 S.E.2d 256, 261 (1984). Defendant first contends that the evidence at trial did not establish the existence of a contractual agreement in which plaintiff specified the type of tanker needed to transport the Hampene 100. Defendant argues that there was no written contract between plaintiff and defendant detailing how the Hampene 100 should be shipped and that defendant was under no contractual obligation to provide plaintiff with a stainless steel tanker to deliver plaintiff's Hampene 100. We disagree.

Defendant admitted in its answer that on or about 12 June 1990, "plaintiff requested from defendant a tanker truck for the purpose of transporting a chemical or related products from plaintiff's place of business in Charlotte, North Carolina, to Kay Chemical Company in Greensboro, NC." Plaintiff's Exhibit 2 is the order form on which defendant's employee reduced plaintiff's telephone order to writing. Defendant's order form reads in pertinent part as follows:

Ship from Ace Chemical Company, Charlotte, North Carolina. Ship to Kay Chemical, Greensboro, North Carolina. Product 40,000 pounds Hampene 100 cleaning compound.... Loading time and date June 12, 1990, 2:00 p.m. Delivery time and date June 13, 1990, 10:00 a.m. ... [T]ype of equipment, 23.

Clein testified that he learned from the deposition of defendant's dispatcher, Scott Willman, that the number 23 designation beside type of equipment meant stainless steel insulated tanker. Defendant does not deny the authenticity or correctness of its order form. "Where the [movant's] controlling evidence is documentary and [the] non-movant does not deny the authenticity or correctness of the documents," the credibility of the evidence is manifest as a matter of law. North Carolina Nat'l Bank v. Burnette, 297 N.C. 524, 537, 256 S.E.2d 388, 396 (1979). Accordingly, defendant's pleadings and defendant's own order form (Plaintiff's Exhibit 2) establish that plaintiff contracted with defendant and defendant agreed to provide plaintiff a stainless steel tanker truck at plaintiff's facility in Charlotte on 12 June 1990 to deliver a load of Hampene 100 to Greensboro, North Carolina.

Plaintiff is not entitled to a directed verdict, however, because we conclude that an issue of fact exists as to whether defendant breached its contract with plaintiff. We reemphasize that in passing upon a motion for directed verdict, we must resolve all conflicts in the evidence in the nonmovant's favor and give the nonmovant the benefit of every reasonable inference. Broyhill v. Coppage, 79 N.C.App. 221, 226, 339 S.E.2d 32, 36 (1986).

Plaintiff alleges that defendant breached...