Hood v. Mitchell

• Decision Date: 08 February 1933
• Docket Number: 469.
• Citation: 167 S.E. 570,204 N.C. 130
• Parties: HOOD v. MITCHELL, Chief State Bank Examiner, et al.
• Court: North Carolina Supreme Court

167 S.E. 570

204 N.C. 130

HOOD v. MITCHELL, Chief State Bank Examiner, et al.

No. 469.

Supreme Court of North Carolina

February 8, 1933

Appeal from Superior Court, Gaston County; Finley, Judge.

Action by J. Sidney Hood against John Mitchell, Chief State Bank Examiner, and others. A demurrer to the complaint was sustained as to defendant John Mitchell individually, and was overruled as to the other defendants, and defendants other than John Mitchell individually appeal.

Affirmed.

Negligence action by tenant injured in building purchased at foreclosure sale by State Corporation Commission as statutory receiver of bank having equities in building held not objectionable as being against state agencies, and recovery would be payable only from assets in receiver's hands.

This is an action to recover damages resulting from personal injuries suffered by the plaintiff, and caused, as alleged in the complaint, by the negligence of the defendants.

The plaintiff is a physician engaged in the practice of his profession in the city of Gastonia, N.C. Since 1924 he has occupied offices in a building located in the city of Gastonia, known as the Third Trust Company Building. He entered into possession of said offices in 1924, as a tenant of the Third Trust Company, which was at that time the owner of said building.

On or about April 29, 1929, the Commercial Bank & Trust Company, a corporation organized and doing business as a banking corporation under the laws of the state of North Carolina suspended its business. The Corporation Commission of North Carolina took possession of all the assets of said company for purposes of liquidation. Since said date, the said Corporation Commission, acting through the defendant John Mitchell, chief state bank examiner, and its successor, the defendant Gurney P. Hood, commissioner of banks, have been successively, engaged in the liquidation of said Commercial Bank & Trust Company, as provided by statute.

Among the assets of said Commercial Bank & Trust Company, which came into the possession of the said Corporation Commission were certain equities in the office building owned by the Third Trust Company. The said office building was incumbered by a deed of trust executed by the Third Trust Building to secure certain bonds which had been issued by said Third Trust Company, and which were then outstanding. The deed of trust was foreclosed, and the Corporation Commission, as authorized by a decree of the superior court of Gaston county, purchased said building at a sale made on February 14, 1930. In accordance with said decree, the said office building was conveyed by the trustee in said deed of trust to the defendant John Mitchell, chief state bank examiner, by deed dated February 25, 1930. Since the date of said deed the defendant John Mitchell, chief state bank examiner, has held said office building as an asset of the Commercial Bank & Trust Company of Gastonia. The said office building is now under the control and in the possession of the defendant Gurney P. Hood, commissioner of banks, who as successor of the Corporation Commission is now engaged in the liquidation of the Commercial Bank & Trust Company.

The allegations of the complaint in which the plaintiff states the cause of action on which he seeks to recover of the defendants in this action are as follows:

"14. That the plaintiff has continuously been a tenant in the building aforesaid since early in 1924, and became a tenant of the defendants by renting rooms in the said Third Trust Company Building as offices for the use and conduct of his profession, and that the plaintiff has occupied, and still occupies offices in said building for the purpose aforesaid, and has continuously been and is now a tenant of said defendants since the purchase by defendants as aforesaid and the execution of the aforesaid deed of conveyance on or about the 25th day of February, 1930.

"15. That among other things, the defendants by their contract of rental agreement were to render competent elevator service to the plaintiff and plaintiff's clientele in reaching plaintiff's offices from the ground or main floor of the building to the floor on which said offices are located.

"16. That the defendants in lieu of keeping an employee at all times for the operation of elevators in said building, furnished the plaintiff an instrument or key to unlock the doors of the elevator shaft, so that in case of requiring the use of said elevator, when the defendants' operator was off duty, he might unlock the door and use the elevator; and that the defendants instructed the plaintiff as to the operation of said elevator.

"17. That the defendants, their agents and servants, represented to the plaintiff that said elevator was equipped with the latest and most approved type of safety devices, one of which said safety devices was to prevent said door or doors of the shaft from being unlocked by the instrument or key furnished plaintiff by defendants unless the car or elevator was at the floor of said building where it was desired to use the said elevator, and further represented that it was impossible to unlock said door or doors unless the elevator was in place at said particular door or doors.

"18. That relying upon the representations aforesaid, and believing that said safety device or devices were in proper and safe working order, the plaintiff on Sunday night, April 6, 1930, desiring to enter his offices on the fifth floor of said building, entered the lobby or hallway of defendants' said building, inserted the key in the lock of said elevator door, and opened the same, and stepped into what he reasonably expected to be the car or elevator, but the said car or elevator was not there, when plaintiff stepped into the elevator shaft, and the

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