#### LONNIE CATOE v. ROBERT BAKER and ROBERT BAKER, JR., Trading as BAKER SALES COMPANY.

(Filed 24 November, 1937.)

Trespass § 7 — Evidence held insufficient to show that loss by theft resulted from wrongful trespass by defendants’ employee.

Plaintiff’s evidence disclosed that plaintiff ordered an article of merchandise from defendants’ store, to be delivered on a certain day, and that defendants were informed that there would be no one at home the following day, that the merchandise was not delivered on the day agreed, and that the following day when plaintiff and his wife left their home *521they locked the doors and nailed down the windows, that when they'returned the article of merchandise was sitting in the living room, the window of which was raised, and the nail which had held it forced out, and personal property of great value taken from the house, and that all the other windows'and doors were locked or fastened. Plaintiff alleged that the wrongful trespass of defendants’ employee in the course of his employment made it possible for a thief to enter and steal the merchandise. *Held:*In the absence of evidence that defendants’ employee, after he placed the merchandise in the room through the window, failed to close and fasten the window, and that the thief entered the house because of such failure, plaintiff is not entitled to recover of defendants the value of the property stolen, and defendants’ motion to nonsuit was properly allowed.

Appeal by plaintiff from *Rousseau, J.,*at April Term, 1937, of Meok-LENBURG.

Affirmed.

This is an action to recover damages resulting from a wrongful and unlawful trespáss by an employee of the defendants on property of the plaintiff while said employee of the defendants was acting within the scope of his employment.

From judgment dismissing the action as of nonsuit, C. S., 567, the plaintiff appealed to the Supreme Court, assigning error in the judgment.

*G. T. Carswell and Joe W. Ervin for plaintiff.*

*John Neioitt for defendants.*

CONNOR, J.

The facts shown by the evidence for the plaintiff at the trial of this action are as follows:

At about 2 :Í5 p. m. on Thursday, 26 September, 1935, the plaintiff and his wife, who are residents of the city of Charlotte, N. C., purchased from the defendants at their store in said city a chair, paying for said chair the sum of $1.75. The plaintiff purchased the chair from the defendants on condition that the defendants would deliver the chair at the home of the plaintiff in the city of Charlotte during the afternoon of Thursday, 26 September, 1935. At the time of the purchase the plaintiff informed the defendants that both he and his wife would be at their home during the afternoon of Thursday, 26 September, 1935, but that neither of them would be at home during the next day. The defendants failed to deliver the chair at the home of the plaintiff during the afternoon of Thursday, 26 September, 1935.

Both plaintiff and his wife left their home at about 6:30 a. m. on Friday, 27 September, 1935. Before leaving they locked all the outside doors of their house and fastened all the windows by nails. Neither the plaintiff nor his wife returned to their home during the day. When *522tbe plaintiff returned borne at abont 8 :15 p. m. tbat day be found tbe cbair, wbicb be and bis wife bad purchased of tbe defendant on tbe preceding day, sitting in a room in bis bouse near a window wbicb opened on a porcb. It bad rained during the day, first about 10 a. m. and again about 2 p. m. There were muddy tracks on tbe porcb and in tbe bouse. Tbe window opening on tbe porcb from tbe room in wbicb tbe cbair was sitting was partly raised. The nail by wbicb tbe plaintiff bad fastened tbe window before be left borne tbat morning bad fallen and was lodged between tbe window frame and tbe window casing. All tbe other windows in tbe bouse were fastened and all tbe outside doors were locked, as they were when plaintiff left borne tbat morning. There was nothing to indicate tbat the other windows in tbe bouse or tbe outside doors bad been tampered with during tbe day while plaintiff and his wife were away from their home.

Upon investigation tbe plaintiff found tbat various articles of personal property, including about $500.00 in money, wbicb were in tbe bouse when be and bis wife left borne tbat morning, were missing. Tbe missing articles of personal property were worth about $660.75.

In bis complaint tbe plaintiff prays judgment tbat be recover of the defendants as bis actual damages tbe value of tbe missing articles of personal property, to wit, $660.75,- and tbe sum of $1,000 as punitive damages.

On bis appeal to this Court tbe plaintiff contends tbat there is error in tbe judgment of tbe Superior Court dismissing bis action, for tbat tbe jury could have found by reasonable inference from tbe foregoing facts tbat tbe employee of tbe defendants who delivered tbe cbair wbicb be and bis wife bad purchased of tbe defendants on Thursday, 26 September, 1935, at bis borne on Friday, 27 September,-1935, wrongfully and unlawfully trespassed on bis property, negligently failed to close tbe window which be bad opened in order to place tbe cbair in tbe room where plaintiff found it upon bis return to bis borne at 8:15 p. m. on Friday, 27 September, 1935, and tbat said employee thereby made it possible for a thief to enter tbe bouse during tbe absence of tbe plaintiff and bis wife and to steal and carry away tbe missing articles of personal property.

Conceding, without deciding, tbat tbe jury could have found, by reasonable inference from tbe facts shown by the evidence for the plaintiff tbat tbe employee of tbe defendants who delivered tbe chair- at the borne of tbe plaintiff some time during Friday, 27 September, 1935, wrongfully and unlawfully trespassed on plaintiff’s property, we are of tbe opinion tbat tbe facts shown by tbe evidence for tbe plaintiff would not justify an inference by tbe jury tbat tbe employee of tbe defendants negligently failed to close tbe window wbicb be bad opened only for tbe *523purpose of placing the chair in. the room where it was found by the plaintiff upon his return home after his absence during- the day.

In no event is the plaintiff entitled to recover on the cause of action alleged in his complaint without proof that .the employee of the defendants, who delivered the chair at plaintiff’s home during his absence, negligently failed to close the window after he had opened it, whether wrongfully or not. It is not alleged in the complaint, nor was it contended by the plaintiff at the trial, that the employee of the defendant stole the missing articles of personal property. It is alleged in the complaint, and was contended by the plaintiff at the trial, that he is entitled to recover of the defendants the value of the missing articles because the wrongful act of the defendants’ employee made it possible for a thief to enter the house and steal the missing articles'of personal property. In the absence of evidence tending to show that the missing articles of personal property were stolen from plaintiff’s house, during his absence, by a thief who entered the house because of the negligent failure of defendants’ employee to close and fasten the window after he had placed the chair in the house, there is no error in the judgment dismissing the action as of nonsuit. The judgment is

Affirmed.