Todd v. Thomas
| Decision Date | 14 February 1962 |
| Docket Number | Civ. No. 529. |
| Citation | 202 F. Supp. 45 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Pearl TODD v. Paul W. THOMAS and Henry Lopes. |
Charles B. Aycock, White & Aycock, Kinston, N. C., for plaintiff, Pearl Todd.
F. T. Dupree, Jr., Dupree, Weaver, Horton & Cockman, Raleigh, N. C., for defendant, Henry P. Lopes.
The plaintiff in this action seeks to recover damages for personal injuries allegedly suffered by her as the result of a collision between two motor vehicles, one in which the plaintiff was a passenger and one which was owned by defendant Lopes and alleged to have been operated by defendant Thomas at the time of the collision.
This matter coming on to be heard before this Court on January 5, 1962;
The Court finds as a fact that plaintiff Todd is a resident of North Carolina, and defendants Thomas and Lopes are non-residents of North Carolina; that plaintiff Todd was a passenger in a motor vehicle involved in a collision with a vehicle owned by defendant Lopes.
The Court further finds as a fact that plaintiff Todd brought an action to recover damages for personal injuries allegedly received as result of the collision; that the action was brought in Lenoir County Superior Court and service on defendant Lopes was made through the United States Mails by the North Carolina Commissioner of Motor Vehicles under North Carolina General Statutes 1-105; that defendant Thomas was never served.
The Court further finds as a fact that defendant Lopes removed the action from the Lenoir County Superior Court to this United States District Court with jurisdiction of this Court based upon diversity of citizenship of the parties under 28 U.S.C. § 1332.
Three motions have been filed in this matter by the parties:
June 26, 1961 — Defendant Lopes moved
to dismiss on the
ground that the Court
was without jurisdiction
of the movant
July 17, 1961 — Plaintiff moved for
voluntary dismissal
without prejudice under
Rule 41, Federal
Rules of Civil Procedure
July 24, 1961 — Defendant Lopes moved
for summary judgment
No ruling having been made on any of these motions, the Court now rules on them in the order in which they were filed:
1. Defendant's motion to dismiss for lack of jurisdiction is denied. This motion was supported by affidavit of defendant Lopes to the effect that he was a resident of Massachusetts; that he had never operated a motor vehicle in North Carolina; that defendant Thomas was a total stranger to him; and, that Thomas never operated Lopes' vehicle on North Carolina roads with Lopes' knowledge or consent. Nevertheless, in his answer Lopes admitted ownership of the vehicle involved in accident set forth in complaint. Under North Carolina General Statutes 20-71.1 such ownership is sufficient proof of agency to support service of process on non-resident owner of...
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James v. Francesco
...the fact of ownership of the vehicle by the non-resident permits but does not compel a finding of agency. Plaintiff cites Todd v. Thomas, 202 F.Supp. 45 (E.D.N.C.1962). If that case can be read as holding that the fact of ownership is conclusive of agency against the non-resident owner, jur......