Sams v. Cochran & Ross Co.

• Decision Date: 19 December 1924
• Docket Number: 457.
• Citation: 125 S.E. 626,188 N.C. 731
• Parties: SAMS ET AL. v. COCHRAN & ROSS CO.
• Court: North Carolina Supreme Court

125 S.E. 626

188 N.C. 731

SAMS ET AL. v. COCHRAN & ROSS CO.

No. 457.

Supreme Court of North Carolina

December 19, 1924

Appeal from Superior Court, Mecklenburg County; Stack, Judge.

Action by Maude Sams and another against the Cochran & Ross Company. From judgment for plaintiffs, defendant appeals. No error.

The defendant conducts a transfer and storage business in Charlotte, and packs and prepares for shipment household goods and other property. In April, 1923, the plaintiffs were about to move their residence from Charlotte, and engaged the defendant to crate and prepare for shipment their household goods, and, while the goods were being held in defendant's warehouse for the purpose of being prepared for shipment, the warehouse was burned and the goods destroyed. There is no dispute that defendant had the goods from April 5th to April 7th, when they were burned, about midnight.

The issues submitted to the jury and their answers thereto were as follows:

"(1) Did the defendant agree to remove the plaintiffs' household goods to its warehouse in Charlotte, N. C., and to crate and deliver same to the Southern Railway Company for shipment to Augusta, Ga., not later than Thursday April 5, 1923, as alleged in the complaint? Answer: No.

(2) If so, did defendant crate said household goods and have them ready for delivery to said railway company on said date? Answer: _____.

(3) Did the defendant agree with the plaintiffs to be responsible for the safety of the said household goods, if the plaintiffs would permit the defendant to remove the said goods to its warehouse, there to be crated for shipment to Augusta, Ga as alleged in the complaint? Answer: Yes.

(4) Were the said household goods of the plaintiffs destroyed by fire by reason of the negligence of the defendant in not crating and delivering same to the Southern Railway Company for shipment to Augusta, Ga., as alleged in the complaint? Answer: Yes.

(5) What amount, if any, are the plaintiffs entitled to recover as damages from the defendant? Answer: $1,500."

There was a judgment on the verdict. Defendant excepted, assigned numerous errors, and appealed to the Supreme Court. We will only consider the material ones.

In action against warehouseman for loss of goods by fire verdict, in answer to special issues, that defendant agreed to be responsible for safety of goods while in warehouse waiting to be crated for shipment, in view of evidence, pleadings, and charge, was sufficient to support judgment for plaintiff, regardless of finding on special issue that defendant did not agree to deliver goods to carrier for shipment not later than specified date, as alleged in complaint.

D. B. Smith and W. S. O'B. Robinson, Jr., both of Charlotte, for appellant.

J. D. McCall, G. T. Carswell, and F. B. McCall, all of Charlotte, for appellees.

CLARKSON J.

The interesting and learned discussion of bailment and warehouseman in the briefs of the defendant we will not consider, as we do not think it necessary for the determination of this case.

Under our liberal practice, the court below, in its sound discretion, in furtherance of justice, can amend the pleading before and after judgment to conform to the facts proved, keeping in mind always that an amendment cannot change substantially the nature of the action or defense without consent. Our system is broadening and expanding more and more, with the view at all times that a trial should be had on the merits, and to prevent injustice.

The plaintiffs in their replication, treated as an amendment to the original complaint, and allowed by the court below, allege: That a representative of defendant company, at the request of Mrs. Sams, the plaintiff, came to see her for the purpose of having the defendant company crate and deliver their household goods to the Southern Railway Company for shipment to Augusta, Ga. That the plaintiff requested the defendant to crate said household goods in their home, No. 312 North Brevard street. That the defendant thereupon "requested the plaintiffs to permit him, for his convenience, to transfer said goods to his warehouse, preparatory to crating and delivering it to the railroad company for shipment, and at the same time telling the plaintiffs that he would be responsible for the said goods, if allowed to remove same to his warehouse. That upon this special agreement the plaintiffs permitted and allowed said goods to be removed by the defendant to his warehouse." That the defendant accordingly did remove the goods on Tuesday, the 3d of April, with the understanding and agreement that the same were to be delivered the following Thursday, the 5th, to the Southern Railroad Company. That the defendant, on the following Thursday, negligently and carelessly failed to crate and deliver the goods to the Southern Railroad Company, as it had contracted to do. "That the said goods were permitted and allowed to remain uncrated in the defendant's warehouse until Saturday night, the 7th of April, when the same were destroyed by fire about midnight of the same day."

It is contended by the defendant that:

"The verdict is contradictory, and, when construed with reference to the pleadings, the evidence, and the charge, is not legally sufficient to support the judgment."

We cannot so hold on the record.

The principle laid down in Ginsberg v. Leach, 111 N.C. 15, 15 S.E. 882, is as follows:

"The Supreme Court will not consider exceptions arising upon the trial of other issues, when one issue, decisive of the appellant's right to recover, has been found against him by the jury." Hamilton v. Lumber Co., 160 N.C. 52, 75 S.E. 1087; Beck v. Wilkins-Ricks Co., 186 N.C. 215, 119 S.E. 235.

The third issue submitted was:

"Did the defendant agree with the plaintiffs to be responsible for the safety of the said household goods, if the plaintiffs would permit the defendant to remove the said goods to its warehouse, there to be crated for shipment to Augusta, Ga., as alleged in the complaint?"

After this issue was found against the defendant, it cannot now be heard to complain, if a reasonable interpretation of the pleadings, evidence, and charge of the court will support the judgment rendered on the findings of the jury on this issue, and there is no error shown affecting this issue. From the answer "No" by the jury to the first issue, from the evidence, they were not satisfied that the goods were to be shipped "not later than Thursday." On the other hand, they found, in response to the third issue, "Yes"; that, in accordance with the allegations of the complaint, defendant had violated its special contract; that plaintiff, for defendant's convenience, agreed to allow defendant to crate the goods in its warehouse; that defendant "would be responsible for the said goods, if allowed to remove same to his warehouse; that upon this special agreement the plaintiff permitted and allowed said goods to be removed by the defendant to his warehouse."

The issue under this allegation of the complaint, "Did the defendant agree with the plaintiff to be responsible for the safety of the said household goods," etc., was answered "Yes." The answers to the issues are not inconsistent or in conflict.

From a careful review of the evidence and the charge of the court below, the jury were warranted in answering this issue as they did. On this aspect of the case we can find no error in the charge of the court, or any error in the exceptions taken and assignments of error.

Issues are sufficient when they submit to the jury proper inquiries as to all the material, essential, or determinative facts about which there is a dispute or controversy. Mann v. Archbell, 186 N.C. 74, 118 S.E. 911; Potato Co. v. Jeanette, 174 N.C. 240, 93 S.E. 795; Power Co. v. Power Co., 171 N.C. 258, 88 S.E. 349.

The serious question arises on the record: Was the allegation in the complaint and the submission of the third issue and the answer "Yes" a sufficient special contract to make the defendant responsible as an insurer, and not a bailee or warehouseman? We think, under the facts and circumstances of this case, the special contract made defendant an insurer.

The case of Robertson v. Lumber Co., 165 N.C. 4, 80 S.E. 894, was written by Brown, J. In that case the contract was that the Lumber Company had decided to take the boat "and would pay every two weeks, and would keep her in good repair and return her in good condition." Although in that case negligence was found under an issue submitted, the court said:

"But, under the contract as testified to by Hopkins, it is only necessary to prove a breach of the contract, viz., that the boat was not kept in good repair nor returned in good condition, and there is abundant evidence of that."

The defendant relies upon Sawyer v....