Ashford v. Davis, 185 N.C. 89 (1923)

March 7, 1923 · Supreme Court of North Carolina

185 N.C. 89

T. P. ASHFORD v. JAMES C. DAVIS, Agent.

(Filed 7 March, 1923.)

1. Summons — Process—Appearance—Waiver—Railroads—Director General — Government.

During the government control of railroads as a war measure, objection for the want of proper service of summons, in an action against one of the railroads, cannot be maintained when the Director General of Railroads has entered a general appearance, amounting to a waiver of insufficient service.

3.Government — Railroads — Summons — Process—Service—Substituted Agent — Parties.

An action against the Director General of Railroads, brought prior to 1 March, 1920, should not be dismissed because service had not been made on the substituted agent of the government appointed under the provisions of the transportation act of 1920, there -being no time stated in the act in which such substituted agent shall be made a party.

3. Evidence — Nonsuit.

The defendant’s motion to nonsuit will not be allowed when regarding the evidence in the light most favorable to the plaintiff, it is sufficient to sustain his alleged cause of action.

4. Instructions — Requests for Instructions — Appeal and Error.

The refusal of defendant’s requested prayers for instruction is not error when the judge has substantially given them in his general charge.

5. Issues — Appeal and Error.

The refusal by the judge of issues tendered by a party to the action is not error when the issues submitted were sufficient to present all the controverted matters in the case.

Appeal by defendant from Calvert, J., at October Term, 1922, of CRAVEN.

This is an action to recover damages for loss of goods by negligence of tbe common carrier. The action was begun 16 May, 1919, against "W". D. Hines, Director General. Before the trial in the Superior Court, the defendant J. C. Davis was appointed agent by the President under section 206 of the Transportation Act of 1920, and the motion was made by plaintiff at the trial to substitute him in place of Hines, Director General, as Director. Verdict and judgment for plaintiff. Appeal by defendant.

B. A. Nurm for plaintiff.

Moore & Dunn for defendant.

Clare, C. J.

The original service was made on a local agent of the railroad company. W. D. Hines, Director General, appeared in the register’s court, defended the action, and appealed from the judgment to the Superior Court. The general appearance waived all defects and irregularities, and would have been sufficient even if there bad been no service at all of the summons shown. C. S., 490.

This action was begun before 1 March, 1920, and there being no stated time in which the agent of the government designated to be substituted for the former Director General was to be made a party, the motion to-dismiss the action was properly denied. Bagging Co. v. R. R., 184 N. C., 73.

The motion to nonsuit was properly disallowed, as the court could not consider any of the defendant’s testimony in its favor on such motion,, but must take the evidence in the most favorable aspect for the plaintiff. Guano Co. v. Mercantile Co., 168 N. C., 223.

The charge of the court put the burden on the plaintiff, not only to prove that the defendant was negligent, but also that such negligence was the proximate cause of the injury. There was no error in refusing the prayers of the defendant as the instructions given substantially covered all that the defendant was entitled to. The issues submitted by the court were sufficient to present all the controverted matters in the ease, and there was no error in rejecting those tendered. Bank v. Ins. Co., 150 N. C., 770.

No error.