Lyon v. Continental Trading Co.

HEDRICK, Chief Judge. Based on Assignment of Error No. 3, defendant contends the trial court erred in denying its 12(b)(6) motion to dismiss for the failure of the complaint to state a claim upon which relief could be granted. Defendant argues that the complaint does not allege the elements of a negligence action with sufficient particularity so as to state a cognizable claim. This Court has on a number of occasions stated the rule applicable to 12(b)(6) motions to dismiss. “A complaint should not be dismissed for failure to state a valid claim unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Unless the face of the complaint shows an insurmountable bar to recovery, plaintiffs action should not be dismissed on the pleading.” Piatt v. Doughnut Corp., 28 N.C. App. 139, 142, 220 S.E. 2d 173, 175 (1975), disc. rev. denied, 289 N.C. 299, 222 S.E. 2d 698 (1976). Plaintiffs have clearly alleged in their complaint a claim for relief based upon defendant’s storage of the chemical Dinitro-phenol in defective and leaking containers and that such negligence on the part of defendant was a proximate cause of the damage to plaintiffs’ Swedish rayon fiber. There is nothing whatsoever alleged or unalleged in plaintiffs’ complaint to establish an insurmountable bar to plaintiffs’ claim. Defendant’s assignment of error to the denial of its 12(b)(6) motion borders on the frivolous. Based on Assignment of Error No. 2, defendant contends the trial court erred in denying defendant’s motion to dismiss made pursuant to Rule 41(b). Here defendant contends that plaintiffs failed to show their right to relief based on their evidence at trial. Rule 41(b) in pertinent part provides: . . . After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move [503] for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. . . . Having made findings of fact which clearly disclose that defendant was negligent in the storage of the chemical Dinitro-phenol, and that such negligence was a proximate cause of the damage to plaintiffs’ Swedish rayon fiber, and since these findings are supported by the evidence in the record, it is clear the trial court did not err in denying defendant’s motion to dismiss pursuant to Rule 41(b). Assignments of Error Nos. 1, 4, 5, 6, and 7 and the exceptions upon which they are based raise the questions of whether the trial court erred in allowing the witness Earl Stewart to testify as to the value of the Swedish rayon fiber stored in the Lackey Industries warehouse, and whether the court erred in finding and concluding the extent of plaintiffs’ damage based on such testimony. The only evidence in this record with respect to the value of plaintiffs’ property damaged by the chemical leaking from defendant’s drums came from the witness Earl Stewart, “associated and employed by” plaintiffs. He testified that the rayon described in certain invoices (Exhibit No. 3) had a total value of $66,680.86, and that the same material had a salvage value after being damaged of $19,599.02. Although Stewart was not denominated by the court as an expert witness, he was certainly qualified by experience and observation as shown by his further testimony in the transcript to communicate his knowledge of the fiber’s value, and such testimony is admissible. Huff v. Thornton, 287 N.C. 1, 213 S.E. 2d 198 (1975). The witness testified on direct examination that he was familiar with two invoices (Exhibit No. 3) that describe the number of bales of Swedish fiber which were stored in the Lackey Industries warehouse along with the chemical in the leaking containers. These invoices were introduced into evidence and disclosed that 672 bales of fiber were stored in the warehouse. The testimony of the witness demonstrates his considerable experience and knowledge concerning the particular fiber involved in this case. The witness detailed his information and knowledge as to the manner in which the fiber was damaged and that such [504] damaged fiber was sold for salvage. The record discloses that the witness was testifying from notes made “at the time.” We hold that the witness was qualified to testify as to the value of plaintiffs’ fiber damaged by the chemicals leaking from defendant’s containers, and that the trial court did not err in allowing all of his testimony challenged by the exceptions upon which these assignments of error are based. We note also that defendant did not cross-examine the witness at trial as to the value of the material damaged by defendant’s negligence. We hold the findings made by the trial court support the conclusions of law drawn therefrom, which in turn support the judgment entered. Affirmed. Judges Webb and Wells concur.