Davis v. Martini

• Decision Date: 21 March 1951
• Docket Number: No. 93,93
• Citation: 64 S.E.2d 1,233 N.C. 351
• Court: North Carolina Supreme Court
• Parties: DAVIS, v. MARTINI et al.

Page 1

64 S.E.2d 1

233 N.C. 351

DAVIS, v. MARTINI et al.

No. 93

Supreme Court of North Carolina.

March 21, 1951

Itimous T. Valentine, Nashville, for plaintiff, appellee.

Battle, Winslow, Merrell & Taylor, Rocky Mount, for defendant, James Everitt Morley, appellant.

ERVIN, Justice.

The legislature acted within the limits of its constitutional authority in enacting the statute now embodied in G.S. § 1-105, which authorizes service of process on the Commissioner of Motor Vehicles as the agent of a nonresident defendant in an action arising out of his operation of a motor vehicle on a public highway of this State. Wynn v. Robinson, 216 N.C. 347, 4 S.E.2d 884; Bigham v. Foor, 201 N.C. 14, 158 S.E. 548; Ashley v. Brown, 198 N.C. 369, 151 S.E. 725.

Under this statute, the ownership or lack of ownership by the nonresident defendant of the motor vehicle involved in the accident is of no legal consequence in so far as his amenability to constructive service of process is concerned. Queen City Coach Co. v. Chattanooga Medicine Co., 220 N.C. 442, 17 S.E.2d 478; Wynn v. Robinson, supra. It provides for constructive service of process upon a nonresident defendant in either of the following situations:

1. Where the nonresident was personally operating the vehicle.

2. Where the vehicle was being operated for the nonresident, or under his control or direction, express or implied.

The facts found by the trial court sustain the ruling on the special appearance, and are binding on the parties to the appeal if they are supported by competent evidence. Bigham v. Foor, supra.

The defendant Morley has reserved exceptions to the findings and to the denial of his requests for special findings, and has thereby challenged the sufficiency of the evidence to support the crucial finding that Burt was operating the tractor-trailer combination for him, or under his control or direction at the time of the collision between it and the truck owned by the plaintiff.

The affidavits offered by plaintiff at the hearing on the special appearance contained competent evidence revealing the facts and warranting the inferences set forth in the next five paragraphs.

1. The defendant, Morley, who did business under the style 'Morley's Transit,' had offices at Middletown and New York City in New York, and at Lake Wales in Florida.

2. On January 2, 1950, the defendant Morley, acting through his office at Lake Wales, Florida, issued a straight bill of lading in the name of 'Morley's Transit, Brokerage Division, Insulated Refrigerated Tractor-Trailer Service, 204 Franklin Street, New York 13, New York,' acknowledging receipt of 350 packages of oranges from the shipper, the Star Fruit Company, at Lake Alfred, Florida, and agreeing to carry them from that place to the consignee, the Atlantic and Pacific Tea Company,...