HOBSON CONSTRUCTION COMPANY, Inc.
v.
HOLIDAY INNS, INC.
No. 7228DC269.
Court of Appeals of North Carolina.
May 24, 1972. Certiorari Denied July 31, 1972.*618 Uzzell & DuMont, by William E. Greene, Asheville, for plaintiff appellant.
Clarence N. Gilbert, Asheville, for defendant appellee.
Certiorari Denied by Supreme Court July 31, 1972.
VAUGHN, Judge.
Plaintiff contends that the trial court erred in granting defendant's motion for a directed verdict in that the evidence presented was sufficient to show actionable negligence on the part of defendant resulting in damage to the plaintiff. The following language appears in 57 Am.Jur.2d, Negligence § 32, p. 378:
"The primary wrong upon which a cause of action for negligence is based consists in the breach of a duty on the part of one person to protect another against injury, the proximate result of which is an injury to the person to whom the duty is owed. These elements of duty, breach, and injury are essentials of actionable negligence. In the absence of any one of them, no cause of action for negligence will lie."
See also, Mercer v. Atlantic Coast Line R. R., 154 N.C. 399, 70 S.E. 742. Our Supreme Court has stated that ". . . an omission to perform a contractual obligation is never a tort unless such omission is also the omission of a legal duty." Greene v. Charlotte Chemical Laboratories, Inc., 254 N.C. 680, 120 S.E.2d 82; see also, Toone v. Adams, 262 N.C. 403, 137 S.E.2d 132; Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551. In the instant case, plaintiff and defendant each had a separate and distinct contract with West Side Motel, Inc. There was no contract between plaintiff and defendant, nor can plaintiff assume the status of third party beneficiary to the contract between defendant and West Side. Any duty arising directly out of the contract was owed by defendant to West Side. The duty owed by defendant to plaintiff, arising indirectly out of the contract, was the same duty owed by defendant to all others in the area of construction, that is, to use due care to keep the premises under his control in a safe condition. Maness v. Fowler-Jones Construction Co., 10 N.C.App. 592, 179 S.E.2d 816. The cases cited by plaintiff in support of his contention that defendant's duty was greater than is stated above are readily distinguishable from the case at hand. Under the circumstances of this case, plaintiff's evidence is insufficient to support an action for negligence, and the trial court's judgment allowing defendant's motion for a directed verdict was free from prejudicial error.
Plaintiff further contends that the trial court erred in granting defendant's motion for a directed verdict made pursuant to Rule 50, North Carolina Rules of Civil Procedure, in that the proper motion to *619 challenge the sufficiency of plaintiff's evidence in a non-jury trial is made pursuant to Rule 41(b). Even though defendant's motion was incorrectly designated, the court, in granting the motion, complied with the provisions set forth in Rule 52(a). Bryant v. Kelly, 10 N.C.App. 208, 178 S.E.2d 113 (Reversed and remanded on other grounds in 279 N.C. 123, 181 S.E.2d 438). The trial court's findings of fact, made in compliance with Rule 52(a), were amply supported by the evidence.
Affirmed.
BROCK and HEDRICK, JJ., concur.