Neff v. Queen City Coach Co.

• Decision Date: 22 November 1972
• Docket Number: No. 7226DC789,7226DC789
• Citation: 16 N.C.App. 466,192 S.E.2d 587
• Court: North Carolina Court of Appeals
• Parties: Garland M. NEFF v. QUEEN CITY COACH COMPANY, a corporation.

Page 587

192 S.E.2d 587

16 N.C.App. 466

Garland M. NEFF v. QUEEN CITY COACH COMPANY, a corporation.

No. 7226DC789.

Court of Appeals of North Carolina.

Nov. 22, 1972.

Hicks & Harris by Richard F. Harris, III, Charlotte, for plaintiff appellee.

John F. Ray, and Myers & Collie by Charles T. Myers, Charlotte, for defendant appellant.

PARKER, Judge.

At the close of plaintiff's evidence and again at the close of all of the evidence defendant moved for a directed verdict in its favor. Denial of these motions is the subject of the exceptions included in appellant's first assignment of error.

A motion for directed verdict under Rule 50(a) of the Rules of Civil Procedure is appropriate when trial is held before a jury. This case was tried by the judge without a jury. The appropriate motion in such case is for involuntary dismissal under Rule 41(b). The distinction is more than one of mere nomenclature, as a different test is to be applied to determine the sufficiency of the evidence to withstand the motion when the case is tried before court and jury than when the court alone is finder of the facts. Bryant v. Kelly, 10 N.C.App. 208, 178 S.E.2d 113, rev'd on other grounds, 279 N.C. 123, 181 S.E.2d 438. In the present case defendant not only made the wrong motions, but in doing so failed to comply with Rule 6 of the General Rules of Practice for the Superior and District Courts Supplemental to the Rules of Civil Procedure, as adopted by our Supreme Court pursuant to G.S. § 7A--34 effective 1 July 1970. This rule requires that '(a)ll motions, written or oral, shall state the rule number or numbers under which the movant is proceeding.' Mull v. Mull, 13 N.C.App. 154, 185 S.E.2d 14; Terrell v. Chevrolet Co., 11 N.C.App. 310, 181 S.E.2d 124; Lee v. Rowland, 11 N.C.App. 27, 180 S.E.2d 445. Adherence to this requirement would have contributed to precision in making the appropriate motions in this case. Though defendant's motions were not properly made, nevertheless we shall treat defendant's motions for directed verdict as motions for an involuntary dismissal under Rule 41(b) and shall pass on the merits of the questions which defendant seeks to raise by this appeal. Mills v. Koskot Interplanetary, 13 N.C.App. 681, 187 S.E.2d 372.

Defendant first contends its motions should have been allowed because plaintiff's evidence showed that his wife, and not he, was the owner of the most valuable portion of the contents of the lost baggage, from which defendant argues that plaintiff is not the real party in interest and therefore is not entitled to prosecute this claim. There is no merit in this contention. Plaintiff's evidence showed that he was the owner of a portion of the contents of the lost bag and as to the remainder, the clothing of his wife, he was in lawful possession and was at least a bailee. 'It has been uniformly held that the bailee has a right of action against a third party, who by his negligence causes the loss of or an injury to the bailed articles, and this right has been held to be the same, even though the bailee is not responsible to the bailor for the loss.' Hopkins v. Colonial Stores, Inc., 224 N.C. 137, 29 S.E.2d 455; 8 Am.Jur.2d, Bailments, § 247. Furthermore, motion has been made in this Court through counsel that plaintiff's wife be made a party-plaintiff. A similar motion was made and allowed in Merchant v. Lassiter, 224 N.C. 343, 30 S.E.2d 217. The motion to make plaintiff's wife an additional party-plaintiff is also allowed in the case now before us. This completely disposes of any contention that this action must be dismissed because it is not prosecuted in the name of the real party in interest. A bailor and bailee may jointly maintain an action for the conversion of or injury to the bailed property. Peed v. Burleson's, Inc.,242 N.C. 628, 89 S.E.2d 256; G.S. § 1A--1, Rule 20(a).

Defendant next contends that its motions to dismiss should have been allowed because certain of plaintiff's evidence indicates that other subsidiaries of Continental Trailways, Inc., and not the defendant, operated the bus on which plaintiff and his wife and child traveled and on which his baggage was transported. In this connection, plaintiff called as a witness one of the attorneys for defendant who testified that Coastal Stages Corporation was the corporation which operated the bus on which plaintiff traveled for the portion of his trip between Charleston and Orangeburg, and that Carolina Scenic Stages, Inc. operated the bus for the portion of the trip from Orangeburg to Charlotte. The evidence indicates that Coastal Stages Corporation, Carolina Scenic Stages, Inc., and defendant, Queen City Coach Company, are all subsidiaries of Continental Trailways, Inc., and the names of all three companies appear on the tickets sold to plaintiff after the words 'Issued by:' and before the words 'all doing business as Continental Trailways.' However that may be, and despite the testimony of defendant's attorney, the trial court in the present case made, among others, the following findings of fact:

'7. On January 8, 1970, the plaintiff was a paid passenger on defendant's bus traveling from Charleston Air Force Base, South Carolina, to Charlotte, North Carolina.

'8. On said date, the plaintiff checked a World War II brown B--4 military bag bearing the inscription 'Lt. G. M. Neff 01331856' with the defendant for transportation from Charleston Air Force Base, South Carolina, to Charlotte, North Carolina, and the plaintiff was given a baggage claim check bearing the number F870--713 by the defendant.'

'14. The plaintiff's baggage was duly accepted by and taken into the exclusive custody, control, and possession of the defendant as a carrier for transportation by its motor vehicle, a bus, in interstate commerce from Charleston Air Force Base, South Carolina, to Charlotte, North Carolina.'

Support for these findings may be found not only in plaintiff's testimony but in defendant's own verified pleadings. In its answer defendant admitted the allegations in paragraph 3 of the complaint that '(o)n or about January 8, 1970, the defendant was engaged in the business of transporting passengers as a common carrier for hire in interstate commerce from Charleston Air Force Base and other cities in South Carolina to Charlotte and other cities in North Carolina,' and in a further answer and defense defendant made reference to the baggage tariff which it had on file with the Interstate Commerce Commission and alleged that such 'tariff governs the transportation of baggage between the defendant and its passengers, Including the plaintiff; that the said tariff constitutes a contract Under which the defendant transported the baggage of the plaintiff and by which contract the defendant limited its liability for failure to deliver the baggage of the plaintiff to Fifty Dollars.' (Emphasis added.) The trial court's findings, being supported by admissions and allegations in defendant's own verified pleadings, are binding on this appeal. The trial court was not required to accept as conclusive the contrary testimony given by defendant's attorney, even when he was presented as a witness for the plaintiff.

Finally, defendant contends its motions should have been allowed because of the $50.00 limitation on its liability and its offer to allow judgment to be taken against it in that amount as contained in its further answer and defense. We do not agree. '(I)n absence of statutory authorization, a common carrier or other public utility may not contract for its freedom from liability for injury caused by its negligence in the regular course of its business.' Jordan v. Storage Co., 266 N.C. 156, 146 S.E.2d 43. However, a common carrier may, by contract, limit its liability if it is expressly authorized to do so by applicable statute or by a regulatory body having power to grant that privilege. Neece v. Greyhound Lines, 246 N.C. 547, 99 S.E.2d 756. In the present case, plaintiff's loss occurred while his property was being moved in interstate commerce. Therefore, appropriate federal statutes are here applicable. Clott v. Greyhound Lines, 278 N.C. 378, 180...