STATE AUTO. MUTUAL INS. CO. v. Smith Dry Cleaners, Inc.

206 S.E.2d 210 (1974)

285 N.C. 583

STATE AUTOMOBILE MUTUAL INSURANCE COMPANY v. SMITH DRY CLEANERS, INCORPORATED.

No. 11.

Supreme Court of North Carolina.

July 1, 1974.

*212 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.

SHARP, Justice:

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 of 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, "It would be mere conjecture to try to establish their condition at the time and what other acts or cleaning processes, if any, were performed on the goods prior to being delivered to the defendant without the testimony of the person who delivered the property. The chain of custody has been broken by the plaintiff."

The Court of Appeals found defendant's rationale convincing. Admittedly this is a close case. Deficiencies in plaintiff's evidence leave unanswered questions which defendant has been alert to raise. It is, of course, possible that Serve-Pro allowed the drapes and spread to get wet in transit from the Wagoner home to defendant's establishment. It is also possible that *213 Serve-Pro first took the items to another cleaner which did not do a satisfactory job of cleaning and that the shrinkage occurred there. Defendant points out that the record contains no admission that the items were sooty when delivered to it; that the drapes and spread were neither measured before they left the Wagoner home nor at the time they were delivered to defendant, "sometime in December 1971."

The shrunken items were gone from the Wagoner residence "approximately a week"not an unreasonable time for cleaning accessories of such size, bulk, and nature. Since defendant was paid for cleaning the items it is a fair inference that it did clean them and that they needed cleaning.

Conceding that the possibilities which defendant suggests do exist, we think plaintiff's evidence raises no question to which defendant cannot supply the answer. Presumably an expert dry cleaner could tell whether drapes and a spread which had taken a blast of soot from a furnace came to it for cleaning after they had been exposed to rain or after another cleaner had attempted unsuccessfully to restore them. In our view, nothing else appearing, the more reasonable probability is that Serve-Pro took the items directly from the Wagoner residence to defendant's dry cleaning establishment and delivered them in an unshrunken condition. See Wilkerson v. Clark, 264 N.C. 439, 141 S.E.2d 884 (1965) and cases cited therein; 3 Strong's N.C. Index, Evidence § 21 (1967). On a motion for a directed verdict the evidence must be interpreted most favorably to plaintiff, and if it is of such character that reasonable men may form divergent opinions of its import, the issue is for the jury. Stewart v. Check Corp., 279 N.C. 278, 182 S.E.2d 410 (1971); Corum v. Tobacco Co., 205 N.C. 213, 171 S.E. 78 (1933).

We hold that the motion for a directed verdict was improperly granted. The decision of the Court of Appeals is reversed with directions that the case be remanded to the Superior Court for a trial de novo.

Reversed.