Israel v. Baltimore & A. R. Co., 599
| Decision Date | 20 May 1964 |
| Docket Number | No. 599,599 |
| Court | North Carolina Supreme Court |
| Parties | Thomas M. ISRAEL v. BALTIMORE AND ANNAPOLIS RAILROAD COMPANY, Carolina Coach Company, and Ronald Michael Temple, Sr. |
Schoch & Schoch, by Arch K. Schoch, High Point, for plaintiff appellant.
McNeill Smith, James G. Exum, Jr., and ysmith, Moore, Smith, Schell & Hunter, Greensboro, for defendant Baltimore and Annapolis R.R. Co., appellee.
Jordan, Wright, Henson & Nichols, by Welch Jordan, Greensboro, for defendants Carolina Coach Co. and Ronald Michael Temple, Sr., appellees.
The plaintiff instituted this civil action to recover personal injury and property damages proximately resulting from a motor vehicle collision between the plaintiff's automobile and trailer, and a 1961 GMC bus owned by the defendant Baltimore and Annapolis Railroad Company and driven by its employee, the defendant Ronald Michael Temple, Sr. The collision occurred at 9:20 A.M., on January 2, 1962, on U.S. Highway 29 near Reidsville, North Carolina, as the vehicles were proceeding southward. The bus collided with the rear of the trailer, resulting in plaintiff's injury and property damage.
The plaintiff alleged:
'6. At the time herein complained of defendants Baltimore and Annapolis Railroad Company and Carolina Coach Company, by agreement, were engaged in a joint enterprise for the transportation of passengers for hire. * * *
'9. At all times herein complained of defendant Ronald Michael Temple, Sr., was the agent and employee of defendant Baltimore and Annapolis Railroad Company, and was acting within the course and scope of his employment; and he received compensation in connection therewith from said defendant Baltimore and Annapolis Railroad Company.
The plaintiff served process on Carolina Coach Company, a Virginia Corporation, and on Ronald Michael Temple, Sr., a resident of Maryland. Both filed joint answers admitting allegation 9, but denying allegations 6 and 10. The plaintiff attempted to bring defendant Baltimore and Annapolis Railroad Company into court under G.S. § 1-105, by service on the Commissioner of Motor Vehicles. The Baltimore and Annapolis Railroad Company entered a special appearance and moved to quash the service and dismiss the action on the ground the movant, though the owner of the bus, had leased it to the defendant Carolina Coach Company to be operated solely by the Carolina Coach Company under its exclusive direction, control and supervision, and under its Interstate Commerce Commission franchise rights.
The Carolina Coach Company, while denying liability, conditionally alleged a cross action against the Baltimore and Annapolis Railroad Company, on the ground the Railroad's liability is primary and the Coach Company's liability, if any, is secondary.
The court heard the motion to quash upon affidavits and pleadings which disclosed the following: The Railroad Company leased its GMC bus, No. 1404, for a charter...
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