Byrd v. North State Motor Lines, Inc., 98

• Citation: 139 S.E.2d 615,263 N.C. 369
• Decision Date: 15 January 1965
• Docket Number: No. 98,98
• Court: United States State Supreme Court of North Carolina
• Parties: Willis E. BYRD v. NORTH STATE MOTOR LINES, INC., Rowe's Trucking Company, Inc., and George Thomas Woolard.

Page 615

139 S.E.2d 615

263 N.C. 369

Willis E. BYRD v. NORTH STATE MOTOR LINES, INC., Rowe's Trucking Company,

Inc., and George Thomas Woolard.

No. 98.

Supreme Court of North Carolina.

Jan. 15, 1965.

Wheatly & Bennett, Beaufort, for plaintiff appellant.

Fields & Cooper, Rocky Mount, and Dupree, Weaver, Horton & Cockman, Raleigh, for North State Motor Lines, Inc., defendant appellee.

BOBBITT, Justice.

Careful consideration impels the conclusion that the evidence, when considered in the light most favorable to plaintiff, is sufficient to require submission for jury determination of an issue as to the alleged actionable negligence of Woolard and that such evidence does not establish contributory negligence as a matter of law. The overruling of Woolard's motion for judgment of nonsuit indicates Judge Peel's view, as to this feature of the case, was in accord with ours. Having reached this conclusion, we deem it appropriate to refrain from further discussion of the evidence (relevant to said issues) presently before us. Weaver v. Bennett, 259 N.C. 16, 19, 129 S.E.2d 610; Tucker v. Moorefield, 250 N.C. 340, 342, 108 S.E.2d 637, and cases cited.

Since a judgment of voluntary nonsuit was entered as to Woolard, the sufficiency of the evidence as to Woolard's actionable negligence is relevant on this appeal only if the evidence is also sufficient to require submission of an issue as to Woolard's alleged agency for North State Motor Lines, Inc., (North State) on the occasion of the collision.

It is established by the pleadings (1) that Woolard is a resident of Rocky Mount, N. C., and (2) that North State is a North Carolina corporation with principal office and place of business in Rocky Mount, N. C.

It was stipulated that 'North State Motor Lines, Inc. was a common carrier on the day in question and that on that date it was operating under a certificate issued by the Utilities Commission of the State of North Carolina and that it was also operating under a certificate issued by the Interstate Commerce Commission and further that it was hauling exempt commodities.'

The principal evidence relevant to the agency issue consists of the testimony of Donald Bryan, Assistant General Manager of North State, examined by plaintiff at trial as an adverse witness. His testimony, summarized except when quoted, is set forth below.

Woolard was the owner as well as the operator of the (1958 Chevrolet) tractor. North State 'obtained possession of that tractor under routine lease agreement from George Woolard.' North State had leased the (1950 Trailmobile) trailer from Rowe Trucking Co., Inc., the owner.

In compliance with the requirement of the North Carolina Utilities Commission, the sign, 'North State Motor Lines, Inc., Rocky Mount, N. C.,' and also the identifying sign, 'Truck No. 122,' a vehicle number assigned for use by North State, were painted on the Woolard tractor.

Under the oral lease between North State and Woolard, the compensation Woolard received was paid to him as owner. Woolard was to receive as compensation '65% of the gross revenue earned by his truck.' However, North State was to deduct therefrom: (1) for gasoline and oil purchased on its credit; (2) for repairs made on its credit; (3) for tire repairs or purchases made on its credit; (4) for 'moneys loaned to him for operating expenses at various times'; and (5) for the amount of premiums paid 'to cover him under (its) Workmen's compensation policy.'

Rowe Trucking Co., Inc., was paid a commission 'from the 35% portion that was retained by North State Motor Lines.' 'A record was kept of what the trailer was used for and * * * it was kept with Woolard's tractor that particular time as a unit, for bookkeeping purposes. Woolard pulled any trailer that North State Motor Lines provided.'

On November 21, 1961, North State dispatched Woolard's tractor, pulling the 1950 Trailmobile trailer with a cargo of 27 hogsheads of tobacco, from Rocky Mount to said Port Terminal in Morehead City for export 'through the Port.' The rate covering the shipment 'didn't come through the Utilities Commission,' but was in accordance with the rate that came to North State from the Tariff Bureau of the Motor Carriers Traffic Association, Inc. Woolard had nothing to do with determining the rate. The contract covering the shipment was between the shipper and North State. The rate was based on the trip from Rocky Mount to Morehead City without reference to a return trip from Morehead City to Rocky Mount.

While North State did not designate the route Woolard would travel from Rocky Mount to Morehead City, Woolard 'was to deliver (the shipment) * * * to Morehead City as soon as possible barring any difficulties or taking time out to eat or stopping to fuel his truck * * *' The only instruction given Woolard was to call North State after he had unloaded in Morehead City 'to determine if they had another truck load of freight to offer for him to transport, and if Mr. Woolard wanted another load he would get in touch with the company.' Woolard was free to take or not take another load. North State, on this occasion, made unsuccessful efforts to find another load involving a trip from Morehead City to Rocky Mount, Wilmington, Norfolk or elsewhere.

Bryan testified: 'He (Woolard) could have obtained a load of freight that was justifiable in his own mind to transport provided that particular load of freight was moved under North State Motor Lines bill of lading,' and if he did so obtain a load of freight and did so move it under North State's bill of lading, the money would have been paid in gross to the office of North State.

Bryan testified Woolard was obligated to look out for and protect the trailer while it was in his possession. Under examination by plaintiff's counsel, Bryan testified he did not know whether Woolard was obligated to bring the trailer back to Rocky Mount. This was at variance with his further testimony when, under examination by North State's counsel, he said: 'Mr. Woolard was under no obligation to bring the trailer back to Rocky Mount.'

It is noted: Absent evidence of specific agreement with reference thereto, this Court cannot accept as authoritative Bryan's legal opinions as to whether Woolard was obligated to bring the trailer back to Rocky Mount or as to the extent Woolard was obligated to comply with North State's directives.

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