Wells v. . West

DeviN, J. The 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. Under 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’s 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. But 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. ■ The rule is stated in 2 R. C. L., 753, as follows: “When 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 *658 relation of the parties out of which the duty violated grows has its inception in contract.” However, the evidence in the case at bar does not disclose a contractual obligation on the part of the defendant with respect to the plaintiff’s 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’s request defendant said she would not let any one have it. The elements of a binding obligation are absent. Plaintiff, however, contends that by virtue of having placed personal property, with defendant’s 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. But 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’s personal property placed by him in the room. Defendant was not an innkeeper and was not an insurer of plaintiff’s property. Holstein v. Phillips, 146 N. C., 366, 59 S. E., 1037. In 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 “a 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.” 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’s possession, actual or constructive. 6 Am. Juris., 191. “There 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.” 6 Am. Juris., 192. The 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. The principles of the law of bailment, as they apply to an action for negligent breach of duty arising under the implied contract of bailment, *659 are not affected by tbe statutory lien given by C. S., 2461, to innkeepers and lodging bouse keepers. For 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 Affirmed.