Smith v. McRary, 91PA82

• Decision Date: 05 October 1982
• Docket Number: No. 91PA82,91PA82
• Citation: 306 N.C. 664,295 S.E.2d 444
• Court: North Carolina Supreme Court
• Parties: James Lawrence SMITH v. Bynum McRARY d/b/a McRary Harley-Davidson.

Page 444

295 S.E.2d 444

306 N.C. 664

James Lawrence SMITH v. Bynum McRARY d/b/a McRary Harley-Davidson.

No. 91PA82.

Supreme Court of North Carolina.

Oct. 5, 1982.

James Lawrence Smith and Joel B. Stevenson, Asheville, for plaintiff-appellee.

Harrell & Leake by Larry Leake, Asheville, for defendant-appellant.

EXUM, Justice.

This is an action by a bailor of a motorcycle who seeks to recover for its loss from the bailee from whom it was stolen. The principal question presented is whether plaintiff offered sufficient evidence of an express or implied contract that the bailee would keep the motorcycle in a particular location, the breach of which might render the bailee liable. Disagreeing with the Court of Appeals, we conclude plaintiff did not. We also conclude it was not prejudicial error to deny plaintiff's motion to amend his complaint when the amendment purports, but fails, to state a claim for breach of contract. We agree with the Court of Appeals' conclusion that plaintiff is entitled to a new trial on his negligence claim because of error in the jury instruction on this aspect of the case.

The evidence at trial tended to show the following:

On 29 September 1979 plaintiff brought to defendant's business a motorcycle he had previously purchased from defendant. He took his motorcycle to the service department located in the main building of defendant's business so it could be checked as required under the warranty and receive routine maintenance. The only charge for this service was the cost of consumable items such as oil and oil filters.

While leaving his motorcycle plaintiff noticed a "Butler building" or shed in back of the main building, but it did not occur to him what its use might be. Defendant did not indicate to plaintiff that his motorcycle might be stored in the shed. Plaintiff knew that defendant had a burglar alarm system in the main building because one of defendant's mechanics had told him about it before he initially bought his motorcycle. When he left his motorcycle for servicing, plaintiff did not ask defendant whether the burglar alarm was working or where he was going to keep the motorcycle after servicing it.

Defendant testified as an adverse witness for plaintiff. When plaintiff brought in his motorcycle, defendant did not tell him where it would be stored. Plaintiff never asked where it would be stored, whether the burglar alarm worked, or what kind of locks were used on the doors to the main building.

Defendant attempted to contact plaintiff after his motorcycle was repaired but learned plaintiff was in the hospital and would not be able to pick it up for a few days. He stored it in the shed because he needed the room in the repair shop. It was stored with its key in the ignition and gas in the tank. On 15 October 1979 defendant discovered that plaintiff's motorcycle and one other had been stolen. He estimated the total value of the stolen property to be $10,000. The shed had been broken into, although the main building, which had nine new motorcycles on display, had not.

Defendant testified that he had installed an automatic lighting system and a burglar alarm system in both the shed and the main building. He also had a chain link fence around the rear of the premises with a fence for the driveway. That fence and the door to the shed were secured with padlocks that were not case-hardened. Defendant's business had been burglarized three times before the theft of plaintiff's motorcycle. Each time it was the main building that had been burglarized. His burglar alarm was installed after the first burglary. It was turned on in his shop for the last two burglaries and the alarm had been cut off in the Asheville Police Department.

Defendant routinely turned on the burglar alarm and locked the padlocks on the fence and shed when he left the shop. He learned, however, on the day the theft was discovered that his alarm system was not working. He periodically checked his alarm by calling the police department, then setting off the alarm to see if they received the signal. He could not remember when he had last checked it before plaintiff's motorcycle was stolen.

The investigating officer testified that he found the lock to the shed and it appeared to have been cut with a bolt cutter. The lock to the gate had also been removed. An expert in preventive security measures testified that he would not recommend any type of lock that was not case-hardened because only case-hardened locks can resist bolt cutters. In addition, he would not recommend a padlock as a security measure.

The following issues were submitted to the jury and answered as indicated:

1. Was the plaintiff damaged by the negligence of the defendant?

ANSWER: No.

2. What damages, if any, is the plaintiff entitled to recover of the defendant?

ANSWER: ________.

The first question that must be addressed is whether plaintiff offered sufficient evidence of an implied or express contract that defendant would repair and store his motorcycle only in his main building. None of the authorities cited by plaintiff support his argument or the Court of Appeals' holding that plaintiff's proof is sufficient to create a jury issue of an express or implied contract. Plaintiff's evidence tended to show that he delivered the motorcycle to defendant at his main building, that defendant moved the motorcycle to a smaller building without plaintiff's permission, and that the motorcycle was stolen from the smaller building.

In order for a party with the burden of proof to create a jury question in a civil case he must offer enough evidence, when that evidence is viewed most favorably to him, "of each element of the claim so that 'reasonable men may form divergent opinions of its import.' " Wachovia Bank & Trust Co., N.A. v. Rubish, 306 N.C. ---, ----, 293 S.E.2d 749, 754 (1982) (quoting State Auto Mutual Ins. Co. v. Smith Dry Cleaners, Inc., 285 N.C. 583, 587, 206 S.E.2d 210, 213 (1974)). Merely delivering a motorcycle for servicing to a particular building is not sufficient, standing alone, to allow a jury to infer that there is an implied contract between the bailor and the bailee that the motorcycle will at all times be kept in that building, even after the repair has been completed.

The leading North Carolina case in this area, Pennington v. Styron, 270 N.C. 80, 153 S.E.2d 776 (1967), does not stand for the proposition that mere delivery of a vehicle to a particular location gives rise to an implied contract that it will be kept in that location. In Pennington the plaintiff "took his boat to the defendant's yacht basin and it was placed in an open slip which he said he had rented .... It was identified by a little tag with plaintiff's name on it." Id. at 81, 153 S.E.2d at 777. In order to accommodate a larger yacht, the defendant moved the plaintiff's yacht to another slip and placed the larger yacht in the plaintiff's slip. Subsequently, the plaintiff's yacht was damaged while in the new slip. The defendant testified that he had never agreed with the plaintiff to maintain a particular slip for his boat, but the Court held that a jury could find the defendant absolutely liable under the plaintiff's evidence if they found "that defendant had agreed to keep plaintiff's boat in a particular place, that is, in the slip in which plaintiff had left it, and that defendant had no authority to move the boat." Id. at 84, 153 S.E.2d at 779.

The case now before us is distinguishable from Pennington on at least two bases. First, in Pennington the essential purpose of the bailment was to store the plaintiff's boat, not to service and repair it. To achieve that purpose the plaintiff rented a particular space or slip. Second, the space was labeled with the plaintiff's name, and even defendant testified that he would not try to use somebody else's slip to accommodate new boats in the basin if the boat assigned to a given slip was out and likely to be returning soon. Id. at 82, 153 S.E.2d at 778. In the instant case there is no similar evidence that plaintiff delivered his motorcycle to a particular space on defendant's property which had been allocated or labeled for his use distinct from the use of others who brought in their motorcycles for servicing or repair. There is no evidence that plaintiff and defendant even discussed the storage of plaintiff's motorcycle in a particular place.

Plaintiff quotes 8 Am.Jur.2d, Bailments § 202 (1980) to support his argument that proof of mere delivery of the motorcycle to the main building is sufficient evidence from which a jury could imply a contract that it will be kept there. It is true that the cited section contains the following language: "It has been held, in the absence of any express agreement on the subject that an agreement that the property is to be kept at a particular place may be implied from the fact that it was left at such place by the bailor." The only case cited for this principle, McCurdy v. Wallblom Furniture & Carpet Co., 94 Minn. 326, 102 N.W. 873 (1905), however, has a much narrower holding. The plaintiff in McCurdy sought to store certain goods in the defendant's store. The defendant explained that the goods would be stored in his warehouse which was located in another part of town. The parties agreed on a charge and the bailor took his goods to the bailee's warehouse and saw them stored in it. Subsequently, the bailee moved the goods to a new place of business without the bailor's consent and they were destroyed by fire. Thus, although the written warehouse receipt did not specify where the goods were to be kept, there was an express discussion and agreement that they were to be stored in the warehouse to which they were delivered. Id. at 327-30, 102 N.W. at 874-75. Plaintiff cites us to no authority, nor were we able to find any, for the principle that mere...