Meyer v. McCarley & Co., Inc.

• Decision Date: 26 June 1975
• Docket Number: No. 106,106
• Citation: 215 S.E.2d 583,288 N.C. 62
• Court: North Carolina Supreme Court
• Parties: Vincent S. MEYER et al. v. McCARLEY AND COMPANY, INC., et al.

Page 583

215 S.E.2d 583

288 N.C. 62

Vincent S. MEYER et al. v. McCARLEY AND COMPANY, INC., et al.

No. 106.

Supreme Court of North Carolina.

June 26, 1975.

Newsom, Graham, Strayhorn, Hedrick, Murray & Bryson, by E. C. Bryson, Jr., Durham, for defendant appellants.

Powe, Porter, Alphin & Whichard , P.A., by J. G. Billings, Durham, for plaintiff appellees.

LAKE, Justice.

The record reveals no material issue of fact between Wheat on the one hand and Anne Meyer and Elizabeth Meyer on the other. It is not controverted that each of them fully paid the purchase price of the 200 shares of Levitz stock held in her account by McCarley. The plaintiffs allege McCarley was given an order to sell such stock at a price, which could have been obtained on the day the order was given, while McCarley denies that it received an order to sell the stock owned by Anne Meyer and Elizabeth Meyer, but that is not a matter at issue as between these plaintiffs and Wheat. It is further not controverted that prior to the opening of their accounts with McCarley, these plaintiffs and Vincent S. Meyer each had an account with Wheat in each of which there was a cash balance due the customer; Vincent S. Meyer ordered these accounts closed as he was authorized to do: he instructed Wheat to deposit the amount so due him in the bank in Richmond upon which he was about to draw a check and Wheat told him it would do so; by its error, Wheat failed so to deposit all of the balance due Vincent S. Meyer and, as a result, the check given by him to McCarley in payment of his 200 shares of Levitz stock was dishonored by the drawee bank.

Summary judgment is appropriate, upon motion therefor duly made, when when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' Rule 56 of the Rules of Civil Procedure, G.S. § 1A--1; McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457; Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35; Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823.

The plaintiffs contend that they sustained a loss by reason of Wheat's negligence in failing to follow the instructions given it by Vincent S. Meyer in making payment of the money which Wheat owed him. They also contend that such failure by Wheat was a breach of its contractual obligation.

The first prerequisite for recovery of damages for injury by negligence is the existence of a legal duty, owed by the defendant to the plaintiff, to use due care. McNair v. Boyette, supra; Moody v. Kersey, 270 N.C. 614, 155 S.E.2d 215; Luttrell v. Mineral Co., 220 N.C. 782, 18 S.E.2d 412; 86 C.J.S. Torts, § 6; 74 Am.Jur.2d, Torts, § 8. The second prerequisite is a breach of that duty. The plaintiffs, Anne and Elizabeth Meyer, have not alleged or shown any interest in, or right to, the balance owed by Wheat to Vincent S. Meyer, their father. Their accounts with Wheat were separate and distinct from his. They could not have maintained an action against Wheat to collect the balance due him. They do not contend that Wheat failed to pay to them, or either of them, the full amount owed by Wheat in accordance with the instructions given Wheat by their agent, Vincent S. Meyer. Whatever negligent failure there may have been by Wheat in carrying out the instructions of Vincent S. Meyer, concerning the payment of the balance due him, was not a violation of a duty owed to his daughters, or either of them.

The third prerequisite to a right of action for damages for negligence is that the alleged negligent act or omission by the defendant was the proximate cause of the injury of which the plaintiff complains. McNair v. Boyette, supra; Moody v. Kersey, supra. Assuming, for the moment, that Wheat owed a legal duty to Anne and Elizabeth Meyer to use due care to send to the designated bank in Richmond the full amount owed by Wheat to Vincent S. Meyer and that Wheat defaulted in the performance of that duty, Wheat would be liable for no loss sustained by Anne and Elizabeth Meyer if a wrongful act by another person, not reasonably foreseeable by Wheat, intervened between Wheat's default and the injury of which these plaintiffs complain and if the injury would not have occurred but for such intervening wrong. Butner v. Spease, and Spease v. Butner, 217 N.C. 82, 6 S.E.2d 808. See also: McNair v. Boyette, supra; Riddle v. Artis, 243 N.C. 668, 91 S.E.2d 894; Potter v. Frosty Morn Meats, Inc., 242 N.C. 67, 86 S.E.2d 780; Loving v. Whitton, 241 n.C. 273, 84 S.E.2d 919; McLaney v. Motor Freight, Inc., 236 N.C. 714, 74 S.E.2d 36; Strong, N.C. Index 2d, Negligence, § 10.

The plaintiffs, Anne and Elizabeth Meyer, allege in their complaint that, through their agent, Vincent S. Meyer, they ordered McCalrley to sell their Levitz stock, held by McCarley, and that the sale price specified by them in such instruction could have been obtained at the time the instruction was given. They allege that McCarley refused to carry out this instruction for the reason that Vincent S. Meyer had not paid for his own shares of the Levitz stock. If, as McCarley contends, no such 'sell order' was given, the alleged default by Wheat in its procedure for paying its indebtedness to Vincent S. meyer had no causal relation to any loss sustained by Anne and Elizabeth Meyer through the decline of the Levitz stock on the market. If such 'sell order' was given, the failure of McCarley to sell the stock of Anne and Elizabeth Meyer was an intervening wrong by McCarley which could not reasonably have been foreseen by Wheat as a probable result of Wheat's own negligence in disregarding Vincent S. Meyer's instruction to it concerning the payment of its indebtedness to him.

As between Wheat and the plaintiffs, the giving and failure to follow the 'sell order' are not in controversy. It is likewise uncontroverted, between them, that Anne and Elizabeth Meyer had paid in full for the Levitz shares held by McCarley for their...