Cook v. Foreman Derrickson Veneer Co. Inc

• Decision Date: 22 September 1915
• Docket Number: (No. 27.)
• Citation: 86 S.E. 289,169 N.C. 493
• Court: North Carolina Supreme Court
• Parties: COOK . v. FOREMAN DERRICKSON VENEER CO., Inc.

86 S.E. 289

169 N.C. 493

COOK .

v.FOREMAN DERRICKSON VENEER CO., Inc.

(No. 27.)

Supreme Court of North Carolina.

Sept. 22, 1915.

Appeal from Superior Court, Pasquotank County; Shaw, Judge.

Action by F. M. Cook against the Foreman Derrickson Veneer Company, Incorporated. Judgment for plaintiff, and defendant appeals. No error.

This is a civil action, tried upon these issues:

(1) Did the defendant hire the barge from the plaintiff, as alleged? Answer: Yes.

(2) Was the said barge, at the time of delivery to the defendant, in a proper condition to be used as contemplated by the parties? Answer: Yes.

(3) What amount is due for rent of barge? Answer: $175, with interest from April 13, 1914.

(4) Was said barge injured by the negligence of the defendant while in its custody, as alleged? Answer: No.

(5) If so, what damage has the plaintiff sustained by reason of the same? Answer: None.

The court rendered judgment for the plaintiff, and defendant appealed.

Eringhaus & Small, of Elizabeth City, for appellant.

Thos. J. Markham and Aydlett & Simpson, all of'Elizabeth City, for appellee.

BROWN, J. [1, 2] In Robertson v. Lumber Co., 165 N. C. 4, 80 S. E. 894, it is held by a unanimous court:

"Where A. enters into a contract with B. for the renting of a boat, wherein it is agreed that A. will keep it in good repair and return it in good condition, and the boat is returned in a damaged condition, A. is liable to B. for damages arising from the breach of contract, irrespective of the question of negligence."

That case fully sustains the judgment rendered upon the issues. At common law bailment contracts are largely implied from the character of the transactions. From the delivery of a chattel in bailment the law implies an undertaking upon the part of the bailee to execute the bailment purpose with due care, skill, and fidelity. The bailee is liable for reasonable care in protecting and caring for the subject of the bailment. Coggs v. Bernard, 1 Smith, Ld. Cases (7th Ed.) 369. The parties may, however, substitute a special contract for this contract implied by law. In such cases the express agreement determines the rights and liabilities arising from the bailment. The bailee may be relieved of all liability, or he may become an insurer. A bailee may thus become liable, irrespective of negligence or fraud, for a breach of the bailment contract. Hale on Bailments, 28, and cases cited in notes; Grady v. Schweinler, 16 N. D. 452, 113 N. W. 1031, 14 L. R. A. (N. S.) 1089, 125 Am. St. Rep. 676, 15 Ann. Cas. 161.

This doctrine is first recognized in this state in Martin v. Cuthberston, 64 N. C. 328. See Lane v. Cameron, 38 Wis. 603; Cullen v. Lord, 39 Iowa, 302. In line with this doctrine it is held in Massachusetts that a special promise or contract must be alleged, where the ground of action is not the negligence of the bailee liable only for ordinary care. Kingsley v. Bill, 9 Mass. 198. The doctrine in its most advanced form is thus referred to by the Chief Justice in Clark v. Whitehurst, 86 S. E. 78, at this term, in referring to the case of Sawyer v. Wilkinson, 166 N. C. 497, 82 S. E. 840, L. R. A. 1915B, 295:

"Though this decision is in accordance with the weight of authority, there are many cases which hold that, even where the party holds under a contract of bailment, if there is a special contract to return the horse in good condition, and the horse dies in the bailee's possession, though without fault on his part, he is liable for its value as insurer."

It is stated in the record that:

The "defendant agreed to redeliver the barge in as good condition as when received, ordinary wear and tear excepted."

Under such contract the defendant is liable for the return of the barge in as good condition as when received, unless prevented by the "act of...