Catoe v. Baker

• Decision Date: 22 November 1937
• Docket Number: No. 534.,534.
• Citation: Catoe v. Baker, 212 N.C. 520, 193 S.E. 735 (N.C. 1937)
• Court: North Carolina Supreme Court
• Parties: CATOE. v. BAKER et al.

193 S.E. 735

212 N.C. 520

CATOE.

v.BAKER et al.

No. 534.

Supreme Court of North Carolina.

Nov. 22, 1937.

Appeal from Superior Court, Mecklen-berg County; J. A. Rousseau, Judge.

Action by Lonnie Catoe against Robert Baker and another, trading as the Baker Sales Company.From a judgment dismissing the action as of nonsuit, plaintiff appeals.

Affirmed.

This is an action to recover damages resulting from a wrongful and unlawful trespass by an employee of the defendants on property of the plaintiff while said employee of the defendants was acting within the scope of his employment.

From judgment dismissing the action as of nonsuit, C.S. § 567, the plaintiff appealed to the Supreme Court, assigning error in the judgment.

G. T. Carswell and Joe W. Ervin, both of Charlotte, for appellant.

John Newitt, of Charlotte, for appellees.

CONNOR, Justice.

The facts shown by the evidence for the plaintiff at the trial of this action are as follows:

At about 2:15 p. m., on Thursday, September 26, 1935, the plaintiff and his wife, who are residents of the city of Charlotte, N. C, purchased from the defendants, at their store in said city, a chair, paying for said chair the sum of $1.75.The plaintiff purchased the chair from the defendants on condition that the defendants would deliver the chair at the home of the plaintiff in the city of Charlotte during the afternoon of Thursday, September 26, 1935.At the time of the purchase, the plaintiff informed the defendants that both he and his wife would be at their home during the afternoon of Thursday, September 26, 1935, but that neither of them would be at home during the next day.The defendants failed to deliver the chair at the home of the plaintiff during the afternoon of Thursday, September 26, 1935.

Both plaintiff and his wife left their home at about 6:30 a. m., on Friday, September 27, 1935.Before leaving they locked all the outside doors of their house and fastened all the windows by nails.

Neither the plaintiff nor his wife returned to their home during the day.When the plaintiff returned home at about 8:15 p. m., that day, he found the chair, which he and his wife had purchased of the defendant on the preceding day, setting in a room in his house, near a window which opened on a porch.It had rained during the day, first about 10 a. m., and again about 2 p. m. There were muddy tracks on the porch and in the house.The window opening on the porch, from the room in which the chair was setting, was partly raised.The nail by which the plaintiff had fastened the window before he left home that morning had fallen and was lodged between the window frame and the window casing.All the other windows in the house were fastened and all the outside doors were locked, as they were when plaintiff left home that morning.There was nothing to indicate that the other windows in the house or the outside doors had been tampered with during the day while plaintiff and his wife were away from their home.

Upon investigation, the plaintiff found that various articles of personal property, including...