State Automobile Mutual Insurance v. Smith Dry Cleaners, Inc. , 19 N.C. App. 444 ( 1973 )

BROCK, Chief Judge.

“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 Company v. Motors, Inc., 240 N.C. 183, 81 S.E. 2d 416.

Clearly the plaintiff’s evidence tends to establish the first two requisites, i.e., (1) that the property was delivered to defendant, and (2) that defendant accepted it and thereafter had possession and control of it. However, plaintiff’s evidence on the third requisite (that defendant returned the property in a damaged condition) is deficient.

The damaged condition which plaintiff’s evidence must tend to establish is a damaged condition which did not exist when the property was delivered to the defendant. Obviously, defendant should not be held liable for a damage which was in existence when the property was delivered to him. Therefore, it is incumbent upon ; plaintiff to show the condition of the property, with respect to the damage claimed, at the time it was delivered and accepted by defendant.

Plaintiff offered no evidence of the length of the materials at the time they were delivered by Serve-Pro to defendant. Apparently, plaintiff was relying upon defendant’s answer to two of its interrogatories to establish the condition of the materials at the time of delivery to defendant. Interrogatories numbers three and five and defendant’s answers are as follows:

“3. Question: When you received the above items, describe their condition as you saw them?

Answer: The items were visibly okay, however, no measurements were taken and there could have been smoke and heat damages.

“5. Question: If you observed the aforesaid items after they were dry cleaned, please describe their condition in detail ?

Answer: They were in good condition.”

These interrogatories and answers fall short of constituting evidence of the length of the materials at the time they were delivered to defendant by Serve-Pro. Since the evidence is silent as to the length of time the materials were in the exclusive possession and control of Serve-Pro, there is no inference that the materials were in. the same condition and the same length when Serve-Pro delivered them to defendant as they were when removed from the Wagoners’ home. In fact, there is no direct evidence concerning the length of the materials immediately prior to their removal from the Wagoners’ house by Serve-Pro.

In our opinion, plaintiff’s evidence is not sufficient to justify or require submitting the case to the jury. The directed verdict for defendant is

Affirmed.

Judges Bkitt and Baley concur.