Arnold v. Ray Charles Enterprises, Inc.

• Citation: 141 S.E.2d 14,264 N.C. 92
• Decision Date: 24 March 1965
• Docket Number: No. 687,687
• Parties: Oliver W. ARNOLD v. RAY CHARLES ENTERPRISES, INC., and Ray Charles (As Leader of 'The Sixteen Plus the Raelets, Musicians').
• Court: North Carolina Supreme Court

Page 14

141 S.E.2d 14

264 N.C. 92

Oliver W. ARNOLD v. RAY CHARLES ENTERPRISES, INC., and Ray Charles (As Leader of 'The Sixteen Plus the Raelets, Musicians').

No. 687.

Supreme Court of North Carolina.

March 24, 1965.

Major S. High, Greensboro, Samuel S. Mitchell, Raleigh, Lee & Lee, Greensboro, for plaintiff.

Smith, Moore, Smith, Schell & Hunter, by Richmond G. Bernhardt, Jr. and James R. Turner, Greensboro, for defendants.

SHARP, Justice.

The contract involved in this case was made in New York, it was to be performed in Virginia, and the action for its breach is brought in North Carolina. Unquestionably the law of the forum, North Carolina, governs all matters of procedure. Howard v. Howard, 200 N.C. 574, 158 S.E. 101. No question of interpretation arises; the language is clear and unambiguous, leaving no room for construction. The only question of substantive law raised by the assignments of error involves the proper measure of damages. Johnson v. Lamar, 250 N.C. 731, 110 S.E.2d 323; 25 C.J.S. Damages § 4 (1941). Throughout, neither party has made any reference to the law of New York or that of Virginia, yet we are required to take judicial notice of foreign law. G.S. § 8-4. It appears that the law of New York, lex loci celebrationis, and that of Virginia, lex loci solutionis, are no different with reference to the substantive question here involved. There would be no profit, then, for us to exercise ourselves here to determine which law is to be applied, for to do so would take us into a 'highly complex and confused part of conflict of laws.' 16 Am.Jur.2d, Conflict of Laws § 38 (1964). See Id. at §§ 38-42; 17 C.J.S. Contracts § 12(1)-12(5) (1963); 15 C.J.S. Conflict of Laws §§ 11, 20-22 (1939).

'The general rule is that, where a person by his contract charges himself with an obligation possible and lawful to be performed, he must perform it * * *. (I)f a party desires to be excused from performance in the event of contingencies arising, it is his duty to provide therefor in his contract, at least where he could reasonably have anticipated the event.' 17A C.J.S. Contracts § 459 (1963).

'In order that a party shall be excused from performing his contract obligation by an absolving clause contained in the contract, the excuse must not only come within the terms of such clause, but also must be reasonably beyond the power of the party to prevent; that is, such a clause will not give a party the power arbitrarily to refuse performance, but he is under a duty to exercise a reasonable amount of care of prevent the happening of the contingency named.' 17 Am.Jur.2d, Contracts § 409 (1964).

Defendants take no exception to the first eleven findings of fact contained in the judgment. They do except to the findings of fact with reference to the amount of damages contained in Conclusion of Law No. 4, but which should have been included in the Findings of Fact as paragraph No. 12. G.S. § 1-184.

The question raised by defendants' first three assignments of error is whether the findings of fact made by the trial judge support his conclusions of law that defendants were not relieved of their obligation to perform the contract in suit by 'proven detention by * * * accident or accidents to means of transportation * * * or any other legitimate conditions beyond the control of the employees (defendants).'

Although the judge made no finding based upon it, plaintiff's testimony was that he knew defendants would travel to Roanoke by plane and he made no objection to this means of transportation. Had the parties so agreed, the contract could, of course, have specified another mode of travel as well as have required defendants to arrive in Roanoke on, say, the preceding day.

The findings of fact eliminated one of the questions debated in the brief, i. e., whether, considering the ever-present weather hazards to avigation, defendants allowed themselves too little time to travel from Baltimore to Roanoke. When they left Charlottesville for Roanoke [264 N.C. 98] at 6:40 p. m. on the day of the scheduled concert, the Roanoke Airport was open for 'in flights.' It was not, therefore, the weather which prevented defendants' arrival in time for the concert; it was an accident to 'means of transportation,' viz., a severe oil leakage in one of the plane's engines. If this leakage was beyond the control of defendants, they are exclupated from liability under the express provisions of the absolving clause of the contract; if not, they are liable. See Annot., Express provisions in contract of sale, or for supply of a commodity, for relief from the obligation in certain event, 51 A.L.R. 990, 996.

Ordinarily the law of the forum controls as to the burden of proof, Howard v. Howard, supra; 3 Beale, Conflict of Laws § 595.3 (1935 Ed.); 15 C.J.S. Conflict of Laws § 22i (1939); and the burden is on defendants to exculpate themselves from liability for their nonperformance. Potter v. Carolina Water Co., 253 N.C. 112, 116 S.E.2d 374; Crouse v. Vernon, 232 N.C. 24, 59 S.E.2d 185; Annot., 51 A.L.R., supra at 906.

Defendants, as operators of the airplane upon which they depended for their arrival in Roanoke in time to perform their contract, were under the duty to exercise reasonable care in the inspection of its engines in order to discover any defects which might prevent its proper operation, and they are chargeable with knowledge of any defects which such inspection would disclose. Annot., Duty and liability as to pre-flight inspection and maintenance of aircraft, 30 A.L.R.2d 1172. The testimony of defendants' booking agent, a witness for defendants, discloses that, after defendants were unable to land in Roanoke, on the flight from there to Charlottesville, the nearest open airport, they 'had some oil line trouble with the plane.' The agent received this information from the individual defendant's personal manager between 5:00 and 6:00 p. m. on the day in question. Was this trouble investigated, remedied or attempted to be remedied during the hour and twenty-five minutes defendants were on the ground at Charlottesville? Defendants offered no evidence on this crucial point, and the burden was on them to do so.

We may concede that the facts found by the judge do not support his conclusions of law. (1) His findings are that, had defendants taken the bus provided for them at Charlottesville, they would have arrived one hour late for the scheduled concert. Their only chance to arrive on time was to undertake to land their plane in Roanoke. Had not engine trouble developed, their judgment would have been vindicated, for the weather had cleared and the airport was opened. Insofar as the findings disclose, at the time the decision to fly was made the only risk which was considered was the weather--not engine trouble. The judge's conclusion, however, was that because weather had once that day prevented their landing at Roanoke, defendants should have chosen an alternate method of travel even though it would have made them one hour late for their engagement. We think this is a non sequitur. (2) He made no finding as to whether the engine trouble was beyond defendants' control. The judgment contains no finding with reference to inspection and repairs to the engine, the pivotal point here, in our view of the case. It does not follow, however, that this judgment must be reversed or remanded.

Ordinarily, when the parties waive a jury trial and the judge omits to find a material fact, we must remand the cause for a finding sufficient to support a judgment. McMillan v. Robeson, 225 N.C. 754, 36 S.E.2d 235; Shore v. Norfolk Nat. Bank, 207 N.C. 798, 178 S.E. 572; Raleigh Banking & Trust Company v. Safety Transit Lines, 198 N.C. 675, 153 S.E. 158. To remand this case for further findings, however, when defendants, the parties upon whom rests the burden of proof here, have failed to offer any evidence bearing upon the point, would be futile. By stipulation the evidence before the Superior Court consisted entirely of the exhibits and the transcript of proceedings in a former trial of this same case in the Corporation Court of the City of Lynchburg, Virginia, in June 1963. (At the conclusion of the evidence there plaintiff elected to take a voluntary nonsuit.) 'The Court may always direct a verdict against the party who has the burden of proof, if there is no evidence in his favor, as where he fails to...