State Auto. Mut. Ins. Co. v. Smith Dry Cleaners, Inc., 11
| Decision Date | 01 July 1974 |
| Docket Number | No. 11,11 |
| Citation | 206 S.E.2d 210,285 N.C. 583 |
| Parties | STATE AUTOMOBILE MUTUAL INSURANCE COMPANY v. SMITH DRY CLEANERS, INCORPORATED. |
| Court | North Carolina Supreme Court |
Womble, Carlyle, Sandridge & Rice by Allan R. Gitter and William F. Womble, Jr., Winston-Salem, for plaintiff appellant.
Graves & Nifong by R. Brandt Deal and Norman L. Nifong, Winston-Salem, for defendant appellee.
Plaintiff prosecutes this action under the rule that an insurance company paying a loss to its insured under the obligation of its policy for property damaged by the tortious act of another is entitled to subrogation to the rights of its insured against the one whose tortious act caused the damage to the extent to the loss paid by the insurance company. Insurance Co. v. Storage Co., 267 N.C. 679, 149 S.E.2d 27 (1966).
To recover, plaintiff invokes the following well established principle of law: 'A Prima facie case of actionable negligence, requiring submission of the issue to the jury, is made when the bailor offers evidence tending to show that the property was delivered to the bailee; that the bailee accepted it and thereafter had possession and control of it; and that the bailee failed to return the property or returned it in a damaged condition.' Insurance Co. v. Motors, Inc., 240 N.C. 183, 185, 81 S.E.2d 416, 418 (1954). See cases cited therein and Mills, Inc. v. Terminal, Inc., 273 N.C. 519, 160 S.E.2d 735 (1968). 'Returned in a damaged condition,' as that phrase is used in the preceding quotation, means, of course, that the property was returned with damage which occurred while the property was in the bailor's possession.
Plaintiff's evidence tends to show: Arrangements were made for the draperies, a bedspread and two pillows belonging to its insureds to be taken to defendant. They were delivered to defendant 'sometime in December 1971.' After delivery to defendant these items were in its sole, exclusive possession during the cleaning process. Serve-Pro took the items from the Wagoner home in order to have them cleaned and, at that time, all were in good condition except for the soot soil. At some unrevealed time Mrs. Wagoner wrote a check to defendant for the work done. When Serve-Pro returned the drapes and bedspread both were clean but they had been damaged by shrinkage which occurred after they were removed from the Wagoner premises.
Defendant's motion for a directed verdict was based upon the ground that plaintiff had failed to show the condition of the property at the time of its delivery to defendant. Defendant argued: The Wagoners did not deliver the drapes and spread to defendant; they delivered them to employees of Serve-Pro who took them away and returned with them approximately a week later. The Wagoners did not see the items in the interim. Since no representative of Serve-Pro testified, it says,
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Penley v. Penley, 16A84
...the credibility of witnesses, and the weight to be given any evidence is for the jury. See State Automobile Mutual Ins. Co. v. Smith Dry Cleaners, Inc., 285 N.C. 583, 206 S.E.2d 210 (1974). The Court of Appeals also stated that plaintiff's past services could not support defendant's subsequ......
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...reasonable men may form divergent opinions of its import, the issue is for the jury." State Automobile Mutual Insurance Co. v. Smith Dry Cleaners, Inc., 285 N.C. 583, 587, 206 S.E.2d 210, 213 (1974). There is sufficient evidence from which the jury could find that Overton had the apparent a......
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