Opinion
32211.
DECIDED NOVEMBER 11, 1948.
Complaint; from Fulton Civil Court — Durwood Pye, judge pro hac vice. August 8, 1948.
Smith, Partridge, Field, Doremus Ringel, for plaintiff in error.
Stanley P. Meyerson, contra.
1. Special ground 4 of the amended motion for new trial complaining that the court erred in allowing an amendment striking the name of one of the parties plaintiff over the defendant's objection is without merit. Ruling on pleadings cannot be reviewed by assignment of error in a ground of a motion for a new trial.
2. There is evidence to support the judgment, and the trial court did not err in overruling the motion for a new trial.
DECIDED NOVEMBER 11, 1948.
Raymond L. Carter and Earl Sabot instituted an action for breach of a bailment contract against Southeastern Air Service Incorporated. The plaintiff alleged substantially that pursuant to a bailment contract, the defendant as bailee had agreed for the sum of $10 per month to store and safeguard plaintiff's airplane, namely, a Taylorcraft, Model L 65, Lycoming, NC 29650, Serial Number 2558; that on July 13, 1947, the defendant, through its agents, permitted, and failed to prevent, the unauthorized removal and wrecking of said plane by one of its employees, Charles W. Lesher; that as a result of the wreck the market value of said plane was reduced $900, the sum for which the plaintiff is suing.
The defendant admitted the bailment and denied other material allegations of the petition.
On the trial of the case the plaintiff was allowed to amend his petition, over the defendant's objection, striking the name of coplaintiff, Earl Sabot. The defendant, however, filed no exceptions pendente lite to this order. The judge sitting without a jury rendered a judgment for the plaintiff in the sum of $700. The defendant excepts to the overruling of its motion for a new trial.
1. No further discussion of headnote 1 is necessary.
2. As all other special grounds of the amended motion for new trial are merely an elaboration of the general grounds, they will be treated together. The trial judge sitting without a jury was authorized from the facts to reach the following conclusions: (1) that a relationship of bailment for hire existed between the plaintiff and the defendant, (2) that this bailment obligation was breached by the defendant's failure to use ordinary care to safeguard plaintiff's airplane. The plaintiff testified that he notified the agents of the defendant not to permit anyone to fly this plane because the certificate of airworthiness had expired. The plaintiff's testimony was substantiated by J. G. Dickson, witness for the plaintiff, who testified that he was present at the time the plaintiff gave this notice to the agents of the defendant. The undisputed evidence is that the defendant's agents made no effort to stop Lesher, an employee of the defendant, from taking the plane and that the policy of the defendant required that express instruction or permission must first be given to the defendant or his agents before anyone other than the owner or bailee of a plane was permitted to use it. The evidence is undisputed that the plaintiff did not give Lesher permission to fly the plane on the day of the accident. Although there was conflicting evidence as to whether or not Lesher had been given "blanket" permission to fly the plane whenever the plane was not hired out, there was evidence sufficient to justify a finding either way. The defendant contends that where the plaintiff relies for recovery solely upon his own testimony, and that testimony is vague and equivocal respecting the essential facts at issue, the plaintiff is not entitled to recover. The testimony of the plaintiff was vague and uncertain only as to conclusions drawn by the plaintiff, but it was not vague, uncertain or contradictory as to any material fact on any issue to be decided.
The court did not err in overruling the motion for a new trial.
Judgment affirmed. Sutton, C. J., and Parker, J., concur.