Wellington-Sears Co. v. Kerr Bleaching & Finishing Works

• Decision Date: 09 November 1949
• Docket Number: 385
• Citation: 56 S.E.2d 24,231 N.C. 96
• Parties: WELLINGTON-SEARS CO., Inc. v. KERR BLEACHING & FINISHING WORKS, Inc.
• Court: North Carolina Supreme Court

56 S.E.2d 24

231 N.C. 96

WELLINGTON-SEARS CO., Inc. v. KERR BLEACHING & FINISHING WORKS, Inc.

No. 385

Supreme Court of North Carolina

November 9, 1949

Civil action to recover damages to goods of plaintiff allegedly negligently caused by fire while in possession of defendant as bailee pursuant to a written contract.

Plaintiff alleges in its complaint these facts in summary: That on or about December 31, 1946, plaintiff delivered to defendant eight bales of cotton drill material it owned, and defendant accepted same pursuant to a contract and understanding between them, whereby defendant was to process the material for a fixed price to be paid by plaintiff, and return same to plaintiff in good, merchantable and usable condition; that on or about said date said material was damaged by fire while it was in possession and on the premises of defendant in Concord, North Carolina; that defendant failed to exercise that care for the protection of said material required of it as a bailee, and through its own negligence destroyed same and failed to return it to plaintiff in good merchantable and usable condition as it had contracted and agreed to do, all to plaintiff's great damage as thereinafter set forth and 'that plaintiff is informed and so believes that the damage to the aforesaid material by fire was proximately caused by the negligence of defendant, acting by and through its agents, servants and employees', in that: Defendant (a) failed (1) 'to exercise reasonable care in the handling of said material so that said material became ignited'; and (2) 'to properly safeguard said material and take reasonable precautions to prevent said material from becoming ignited while in its possession' and (b) 'carelessly and recklessly caused said material to become ignited'.

Defendant answering the complaint of plaintiff, admits that on or about December 31, 1946, plaintiff owned certain eight bales of cotton drill material, which had been delivered to and accepted by, and was in possession of defendant, pursuant to a written contract; and that on or about said date the aforementioned bales of material were damaged by fire while in the possession of defendant on premises of the defendant in Concord, North Carolina; but denies all allegations of negligence.

And for further answer and in bar of plaintiff's right to recover, defendant avers: That the relationship between plaintiff and defendant with reference to the goods referred to in the complaint is determined by the provisions of a written contract, No. 2846, dated February 20, 1946, among which is this provision: 'All goods at our plant are at your risk of damage by fire or sprinkler leakage and all other casualties while in transit or in our possession. Insurance rate at our plant is one-tenth of one per cent. We will insure upon request, duly acknowledged by us'; and that plaintiff did not request defendant to insure said goods, and defendant did not insure same.

On the trial in Superior Court it was stipulated and agreed by plaintiff and by defendant, through counsel, among other things, 'that upon receipt of the involved material, the defendant placed same in its warehouse known as the old Buffalo Mill; that on the 31st day of December, 1946, at approximately 3:30 P. M., said material was loaded into a box car of the Southern Railway Company by employees of the Kerr Bleachery; that the ...