Misenheimer v. Hayman
| Decision Date | 09 May 1928 |
| Docket Number | (No. 459.) |
| Citation | 143 S.E. 1 |
| Court | North Carolina Supreme Court |
| Parties | MISENHEIMER . v. HAYMAN. |
Appeal from Superior Court, Mecklinburg County; Harding, Judge.
Action by J. J. Misenheimer against Felix Hayman. Judgment for plaintiff, and defendant appeals. No error.
Action for damage to an automobile alleged to have been caused by defendant's negligence. The issues of negligence, contributory negligence, and damages were answered in favor of the plaintiff. Exception and appeal by defendant.
John M. Robinson and S. E. Vest, both of Charlotte, for appellant.
C. A. Duckworth and James A. Lockhart, both of Charlotte, for appellee.
The plaintiff alleges that, on the occasion complained of, he was the owner of a Buick sedan, and the defendant of a Ford delivery truck; that the defendant was engaged in the market business in the city of Charlotte; that Henry Franklin, while engaged as an employee in the defendant's business, damaged the plaintiff's car by negligently running the defendant's truck against it and causing it to plunge down an embankment. The defendant denied the plaintiff's material allegations and pleaded contributory negligence. He introduced no evidence, and moved to dismiss the action as in case of nonsuit. The motion was denied, and, from the judgment rendered upon the issues, the defendant appealed.
The determination of the defendant's exceptions pivots on the two questions whether there is more than a scintilla of evidence tending to identify the truck as the property of the defendant, and to show that the driver was in the service of the defendant when the injury occurred.
In his answer the defendant admits that Henry Franklin was in his employment and, at one time, operated one of his delivery trucks. On the disputed points there was evidence tending to show that the defendant was engaged in the meat market business and ran a delivery service1; that the truck which struck the plaintiff's car bore on its body the words "Felix Hayman" or "Hayman's Meat Market"; that it was driven by a colored man; that trucks corresponding to it in description had been seen at the defendant's place of business; that a truck of similar description had often been noticed passing along the road on which the collision occurred.
Unquestionably there is evidence of the driver's negligence; and in our opinion there is sufficient evidence of the defendant's ownership of the truck. The defendant contends, however, that, if this be admitted, it...
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Daniel v. East Tenn. Pacing Co
...his master's business. The jury so found and the presumption is that the trial Judge charged correctly on this aspect. Misen-heimer v. Hayman, 195 N.C. 613, 143 S. E. 1; Puckett v. Dyer, 203 N.C. 684, 167 S.E. 43; Jackson v. Scheiber, 209 N.C. 441, 446, 184 S.E. 17. In Robinson v. McAlhaney......
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Martin v. Line
...misapplication.' Holler v. Ross, 68 N. J. Law, 324, 53 A. 472, 59 L. R. A. 943, 96 Am. St. Rep. 546." The decisions in Misenheimer v. Hayman, 195 N. C. 613, 143 S. E. 1, 2, and Freeman v. Dalton, 183 N. C. 538, 111 S. E. 863, both strongly relied upon by plaintiff, are not in conflict with ......
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Cotton v. Carolina Truck Transp. Co
...act in question." See, also, Elmore v. R. R., 189 N. C. 658, 127 S. E. 710, and cases there cited. Nothing was said in Misenheimer v. Hayman, 195 N, C. 613, 143 S. E. 1, 2, or Hayes v. Pine State Creamery, 195 N. O. 113, 141 S. E. 340, both strongly relied upon by plaintiff, which, when pro......
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