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Ford v. NCNB Corp.

COURT OF APPEALS OF NORTH CAROLINA


Filed: October 1, 1991.

WILSON FORD, PLAINTIFF
v.
NCNB CORPORATION, DEFENDANT

Appeal by defendant from judgment entered 7 July 1989 by Judge Shirley L. Fulton in Mecklenburg County Superior Court.

Phillips, Judge. Judges Arnold and Cozort concur.

Phillips

[104 NCApp Page 175]

[1] Defendant appellant poses three questions for us to determine, the first of which is whether the court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict. The asserted basis for the motions was that the evidence

[104 NCApp Page 176]

does not indicate that the lost deposit was a proximate cause of A&P terminating plaintiff's employment. Since losing his job with A&P was not the only damage that the evidence shows plaintiff sustained as a consequence of the lost deposit the motions were without merit on their face, and were properly denied by the court. Furthermore, evidence was presented indicating that the loss of the deposit proximately caused plaintiff to lose his job. That the bank reported to A&P that $5,000.15 plaintiff said he delivered to the bank was not received, that A&P fired him after subjecting him to a polygraph test concerning the lost deposit, and that A&P offered to rehire him after the deposit was found is evidence from which the inference can be drawn that he was fired because of the lost funds. And as defendant expressly recognized in its brief, there was also testimony by A&P's store manager that he "understood that plaintiff was terminated because the deposit bag was lost." That this evidence may have been erroneously received, as defendant contends, did not eliminate it from the case as defendant mistakenly assumes. The evidence having been received, the court had to take it into account in determining whether the verdict was supported by evidence. Harrell v. W. B. Lloyd Construction Co., 300 N.C. 353, 266 S.E.2d 626 (1980). Nor is it correct, as defendant further argues, that the testimony of A&P's personnel manager establishes without contradiction that plaintiff was fired for not following the store's requirement that the night depositor be accompanied by another employee. For the personnel manager himself contradicted this testimony by admitting that plaintiff would not have been fired if the lost deposit had been found within a few weeks, and plaintiff further contradicted it by testifying that he had not been told of any requirement to be accompanied when making night deposits and that both he and the store manager had made unaccompanied deposits without being reprimanded.

[2] The second question defendant presents is whether the court erred in refusing to submit an issue as to the negligence claim asserted in the amendment to the complaint being barred by G.S. 1-52(16), the three-year statute of limitations for personal injury actions. We treat the question as being whether the action is barred by the three-year statute of limitations, for under the circumstances recorded and argued the question is one of law, not fact. Since plaintiff's claim for negligence accrued, so defendant states, either at "the end of September, 1984," when "the Plaintiff first learned there was some problem with the July 31 deposit" or "about October

[104 NCApp Page 177]

9, 1984" when A&P terminated his employment, and the amendment to the complaint was not filed until 17 May 1989, the answer to the question depends upon whether the original pleading alleging a breach of the bailment involving the deposit was notice to defendant of "the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading." Rule 15(c), N.C. Rules of Civil Procedure. Under the provisions of that rule if the original pleading was such notice the amendment will be "deemed to have been interposed at the time the claim in the original pleading was interposed," which was within three years of the accrual of the action. If, however, the original pleading was not such notice, the amended pleading came too late and the claim asserted is barred.

Defendant's argument that the original pleading as to breaching the bailment was not notice to it of the occurrences and transactions upon which the amended negligence claim is based has no merit. Defendant's liability as a bailee of the deposit rests upon negligence, 8 C.J.S. Bailments Sec. 48 (1988); Millers Mutual Insurance Association of Illinois, et al. v. Atkinson Motors, Inc., 240 N.C. 183, 81 S.E.2d 416 (1954), and in the original pleading it was alleged that defendant breached the bailor-bailee relationship by failing to find and credit the deposit. In the amendment to the complaint it was alleged that defendant's failure to find and credit the deposit was negligence. The amended pleading does not allude to any new occurrence or transaction; it merely characterizes differently the same occurrences and transactions that the original pleading was based upon. Since both pleadings are based on the occurrences and transactions that were proved at trial and which support the verdict and judgment the negligence claim is not barred by the statute of limitations and defendant's arguments to the contrary are overruled.

[3] The final question defendant poses is whether the court erred in permitting plaintiff to recover damages for the mental and emotional distress caused by defendant's negligence which did not involve any physical contact with plaintiff. In arguing that plaintiff is not entitled to such damages, defendant relies upon statements in various cases, including Williamson v. Bennett, 251 N.C. 498, 503, 112 S.E.2d 48, 52 (1960), to the effect that "in ordinary negligence cases" recovery may not be had for mental or emotional distress in the absence of "some actual physical impact or genuine physical injury." But our Courts have allowed such damages to be recovered

[104 NCApp Page 178]

in many unusual cases not involving physical contact where the emotional and mental stress suffered was an obvious and natural consequence of the particular negligence involved. One such case is Kimberly v. Howland, 143 N.C. 398, 55 S.E. 778 (1906), where negligence in blasting caused rocks to strike plaintiff's house, but not the plaintiff. Another such case is Young v. Western Union Telegraph Co., 107 N.C. 370, 11 S.E. 1044 (1890), where damages for mental and emotional distress resulting from the negligent late delivery of a telegraph message indicating a spouse's last illness were approved. In Young the Court said, "If injury to the feelings be an element to the actual damages in slander, libel, and breach of promise cases, it seems to us it should equally be so considered in cases of this character." Id. at 375, 11 S.E. at 1045. The same rule applies in this extraordinary case where defendant bank's negligence in handling money duly and properly delivered to it naturally, if not inevitably, caused plaintiff to be suspected of dishonesty and suffer mental and emotional distress, though no physical contact either occurred or was threatened. For it is a commonly known fact of life that employees who fail to deposit money entrusted to them for that purpose are often suspected of embezzlement; that employees suspected of dishonesty are often shunned and derided by others; that honest persons unjustly suspected of dishonesty are embarrassed, worried, humiliated and frustrated; and that such mental and emotional stress and strain often causes a loss of sleep and weight. The impact rule, devised for circumstances markedly different from those present here, is no reason for denying redress for consequences so naturally and obviously resulting from a defendant's neglect in handling money duly delivered to it, and since the law does not require vain things it does not require medical proof of consequences that are as natural and obvious as those plaintiff suffered in this case.

In a case strikingly similar in its facts to this one, the Mississippi Supreme Court deemed the impact rule inapplicable and allowed the plaintiff to recover damages for emotional distress much like that which the plaintiff in this case suffered. In First National Bank v. Langley, 314 So.2d 324 (Miss. 1975), Langley, also an employee of A&P, deposited the day's receipts in the bank's night depository and was suspected of thievery after the bank reported that the deposit had not been received. The only significant difference between the cases is that Langley repeatedly requested the bank to check the depository and the bank, after making superficial

[104 NCApp Page 179]

checks, incorrectly insisted that the bag could not have gotten hung up in the depository. Four members of the Court dissented from the decision, not because the "impact rule" was not applied, but because they were of the opinion that punitive damages should have been permitted, while the majority ruled otherwise.

No error.

Disposition

No error.

19911001

© 1998 VersusLaw Inc.



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