{
  "id": 8617134,
  "name": "NELSON W. WELLS v. MRS. W. S. WEST",
  "name_abbreviation": "Wells v. West",
  "decision_date": "1937-12-15",
  "docket_number": "",
  "first_page": "656",
  "last_page": "659",
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    {
      "cite": "146 N. C., 366",
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      "cite": "131 S. E., 633",
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    {
      "cite": "191 N. C., 182",
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  "last_updated": "2023-07-14T21:30:43.466662+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "NELSON W. WELLS v. MRS. W. S. WEST."
    ],
    "opinions": [
      {
        "text": "DeviN, J.\nThe action having been begun in the court of a justice of the peace, upon appeal therefrom the jurisdiction of the Superior Court was derivative only. Therefore the sole question presented is whether the justice of the peace had jurisdiction of the cause of action for the recovery of $200.00 damages based on the evidence presented by the plaintiff in support thereof.\nUnder the evidence shown by the record plaintiff could maintain his action against the defendant for the loss of his accordion (if at all) only on the ground of a negligent or wrongful act on the part of the defendant, a tort as defined in Elmore v. R. R., 191 N. C., 182, 131 S. E., 633, and as the justice\u2019s jurisdiction in actions of tort is limited to those cases wherein the sum demanded does not exceed $50.0-0, the Superior Court was without jurisdiction.\nBut plaintiff invokes the well established principle that where the matter out of which the cause of action arises has in it elements of both contract and tort, the plaintiff may waive the tort and sue in contract, and contends that he has done so in this case.\n\u25a0 The rule is stated in 2 R. C. L., 753, as follows: \u201cWhen a contractual relationship exists between persons, and at the same time a duty is superimposed by or arises out of the circumstances surrounding or attending the transaction, the violation of which duty constitutes' a tort, the tort may be waived and assumpsit maintained for the reason that the relation of the parties out of which the duty violated grows has its inception in contract.\u201d\nHowever, the evidence in the case at bar does not disclose a contractual obligation on the part of the defendant with respect to the plaintiff\u2019s accordion. The contract for the rental of the room contained no stipulation about the musical instrument, and it was some two months later that in response to plaintiff\u2019s request defendant said she would not let any one have it. The elements of a binding obligation are absent.\nPlaintiff, however, contends that by virtue of having placed personal property, with defendant\u2019s consent, in his rented room in her house the relationship of bailor and bailee resulted, and that an action for a breach of duty on the part of the bailee, though based on negligence, was one in which he could elect to waive the tort and sue on contract.\nBut the law of bailment is not applicable to the facts disclosed in this case. The property was not placed in possession of defendant nor was custody thereof accepted by her. It was at all times in the room rented by plaintiff in the house of defendant, and there was neither actual nor constructive possession of the accordion delivered to her. That defendant had access to the room for the purpose of maid service would not constitute possession of plaintiff\u2019s personal property placed by him in the room. Defendant was not an innkeeper and was not an insurer of plaintiff\u2019s property. Holstein v. Phillips, 146 N. C., 366, 59 S. E., 1037.\nIn Hanes v. Shapiro, 168 N. C., 24, 81 S. E., 1003, will be found a full discussion of the law of bailment. The generally accepted definition of a bailment is that it is \u201ca delivery of goods in trust upon a contract, express or implied, that the trust shall be duly executed and the goods restored by the bailee as soon as the purposes of the bailment shall be answered.\u201d 2 Kent Comm., 559. To constitute a bailment there must be a delivery by the bailor and acceptance by the bailee of the subject matter of the bailment. It must be placed in the bailee\u2019s possession, actual or constructive. 6 Am. Juris., 191.\n\u201cThere must be such a full transfer, actual or constructive, of the property to the bailee as to exclude the possession of the owner and all other persons and give the bailee for the time being the sole custody and control thereof.\u201d 6 Am. Juris., 192.\nThe rental of a room, and the deposit therein by the tenant of certain personal property, though the landlord had access to the room for janitor or maid service, would not constitute such a delivery of the personal property as to constitute the landlord a bailee. Broaddus v. Commercial Nat. Bank, 113 Okla., 10, 42 A. L. R., 1331.\nThe principles of the law of bailment, as they apply to an action for negligent breach of duty arising under the implied contract of bailment, are not affected by tbe statutory lien given by C. S., 2461, to innkeepers and lodging bouse keepers.\nFor these reasons we conclude tbat tbe court below bas correctly beld that tbe Superior Court was without jurisdiction, and tbe judgment dismissing tbe action is\nAffirmed.",
        "type": "majority",
        "author": "DeviN, J."
      }
    ],
    "attorneys": [
      "Schoch & Schoch for plaintiff, appellant.",
      "Gold, McAnally & Gold for defendant, appellee."
    ],
    "corrections": "",
    "head_matter": "NELSON W. WELLS v. MRS. W. S. WEST.\n(Filed 15 December, 1937.)\n1. Courts \u00a7 2d\u2014\nThe jurisdiction of the Superior Court upon appeal from a judgment of a justice of the peace is derivative, and where the justice\u2019s court has no jurisdiction, the Superior Court acquires none by appeal.\n2. Actions \u00a7 7: Innkeepers \u00a7 3 \u2014 Proprietor\u2019s wrongfully permitting third person to take property from rented room is a tort.\nEvidence that plaintiff rented a room in defendant\u2019s lodging house, that thereafter plaintiff told defendant, to let no one have his accordion kept in the room, to which defendant agreed, and that some time later defendant permitted a third person to take the accordion on the pretext that plaintiff had sent him for it, is held to establish a cause of action in tort, if at all, and not an action based upon the violation of any duty founded upon contract, the proprietor of the lodging house not being a bailee of the property, and there being no binding agreement on the part of the proprietor not to let anyone have the accordion, the statements in regard thereto having been made some time after the conclusion of negotiations for renting the room.\n3. Justices of the Peace \u00a7 3 \u2014 Where action for more than $50 is founded solely in tort, justice of the peace has no jurisdiction.\nWhere the evidence in an action against the proprietor of a lodging house tends to show that the proprietor wrongfully permitted a third person to take plaintiff\u2019s personal property, valued at more than fifty dollars, out of the room rented by plaintiff, the action is founded solely in tort, and the justice\u2019s court has no jurisdiction, and the rule that where an injury results from breach of some contractual duty, plaintiff may waive the tort and sue on the contract, has no application.\n4. Bailment \u00a7 1: Innkeepers \u00a7 3 \u2014 Proprietor of lodging house is not bailee of personal property left in rented room.\nA proprietor of a lodging house is not a bailee of personal property left in the room rented by the owner of the personalty, even though the- proprietor has access to the room for janitor and maid service, there being no such delivery of possession of the personalty necessary to establish the relationship, and this result is not affected by the statutory lien given by O. S., 2461.\nAppeal by plaintiff from Phillips, Jat October Term, 1937, of G-uileord.\nAffirmed.\nThis was an action instituted by plaintiff in the court of a justice of the peace \u201cfor the nonpayment of the sum of $200.00 due by breach of contract of bailment.\u201d The sum sued for was the value of an accordion left in plaintiff\u2019s room at defendant\u2019s lodging house, which it was alleged defendant had negligently and in breach of contract of bailment permitted to be fraudulently taken by a third person.\nFrom a judgment by the justice of the peace for $50.00 only, plaintiff appealed to the Superior Court.\nIn the trial de novo in Superior Court plaintiff offered evidence tending to show that he rented a room from defendant into which he moved his personal belongings, including an accordion; that he told her about the accordion and asked if it was all right for him to practice; that six weeks to two months after he moved in he told her not to let any one have the accordion, and she said she would not let any one have it; that subsequently on 8 July, 1937, he was informed by the defendant that she had permitted a man calling himself Ward to remove the accordion from the house on the fraudulent pretext that plaintiff had sent him for it; that the accordion has been thereby lost and not recovered, and that the market value of same was $225.00 to $250.00.\nAt the close of plaintiff\u2019s testimony the trial judge allowed the motion to dismiss for want of jurisdiction. From judgment dismissing the action plaintiff appealed to the Supreme Court.\nSchoch & Schoch for plaintiff, appellant.\nGold, McAnally & Gold for defendant, appellee."
  },
  "file_name": "0656-01",
  "first_page_order": 726,
  "last_page_order": 729
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