Gore v. George J. Ball, Inc.

178 S.E.2d 237 (1971)

10 N.C. App. 310

C. O. GORE, Trading as Gore Greenhouses v. GEORGE J. BALL, INC.

No. 7013SC369.

Court of Appeals of North Carolina.

January 13, 1971.

Certiorari Allowed March 3, 1971.

*239 Powell, Lee & Lee, by J. B. Lee, Whiteville, for plaintiff-appellant.

Marshall, Williams & Gorham, by Lonnie B. Williams, Wilmington, for defendant-appellee.

Certiorari Allowed by Supreme Court March 3, 1971.

BROCK, Judge.

Plaintiff's exception no. 21 is to the granting of defendant's motion for a directed verdict.

Plaintiff's evidence does not disclose any negligence on the part of defendant in its handling, packaging, or labeling of the seed.

Plaintiff contends that defendant has, in certain respects, violated G.S. Chap. 106, Article 31, entitled "North Carolina Seed Law", and that said violations constitute negligence per se. Our cases which *240 hold that the violation of a statute constitutes negligence per se deal with statutes designed for the protection of the health or safety of persons or property. See Byrd, Proof of Negligence in North Carolina, 48 N.C.L.Rev. 731 (1970). While certain provisions of Article 31 are concerned with the treatment of seed with poisonous chemicals, plaintiff does not seek a remedy for a violation of those provisions. In any event, it is not necessary for us to decide whether a violation of the statute, in the respects alleged by plaintiff, constitutes negligence per se, because plaintiff's evidence discloses that defendant is within the exemption provided by G.S. § 106-277.10(e).

Plaintiff contends that the doctrine of res ipsa loquitur required submission of the case to the jury. For the doctrine of res ipsa loquitur to apply, three elements must coalesce: (1) there must be an injury; (2) the occurrence causing the injury must be one which ordinarily does not happen without negligence on the part of someone; and (3) the instrumentality which caused the injury must have been under the exclusive control and management of the defendant. Jackson v. Neill McKay Gin Co., 255 N.C. 194, 120 S.E.2d 540. Plaintiff's proof fails in respect to the third element. The seed was under the control of Ferry Morse Seed Company part of the time, and it is not shown that the mislabeling had not already occurred when defendant received the lot of seed.

Plaintiff contends that defendant's failure to notify him, after receiving complaints from other quarters that the seeds were mislabeled, constitutes negligence. The evidence discloses that defendant keeps no records of the particular source of the seed used to fill a given order. We cannot say that there is a duty to maintain such records, at least as to such a harmless product as tomato seed. Defendant could not be expected, in the absence of such data, to notify plaintiff some seven months after the sale.

Plaintiff contends that liability should be imposed upon defendant under a theory of strict liability in tort, irrespective of negligence. We find no basis in the law of this jurisdiction for predicating liability on such a theory, on the facts of this case. We think the language of the court in Wilson v. Lowe's Asheboro Hardware, Inc., 259 N.C. 660, 131 S.E.2d 501, is appropriate: "A producer is not an insurer. His obligation to those who use his product is tested by the law of negligence. He must operate with that degree of care which a reasonably prudent person would use in similar circumstances."

We hold that the trial judge was correct in directing a verdict for the defendant in each of the plaintiff's causes of action grounded in tort.

Plaintiff contends that if he is not entitled to have the case submitted to the jury upon the questions of tort liability, nevertheless his evidence was sufficient to require submission of the case to the jury upon the theory of breach of contract. The transaction occurred in January 1966; therefore the Uniform Commercial Code has no bearing upon this case. G.S. § 25-10-101.

In our opinion the plaintiff's evidence, when taken in the light most favorable to him, would justify the jury in finding a breach of contract. If a breach of contract is established the plaintiff would be entitled to nominal damages at least. 2 Strong N.C. Index 2d, Contracts, § 29, p. 339.

Insofar as the judgment entered directs a verdict in favor of the defendant upon plaintiff's cause of action for breach of contract the same is reversed and this cause is remanded to the Superior Court of Columbus County for trial upon plaintiff's allegations of breach of contract.

Error and Remanded.

MORRIS and VAUGHN, JJ., concur.