Myers v. Kirk, 192 N.C. 700 (1926)

Dec. 8, 1926 · Supreme Court of North Carolina

192 N.C. 700

GUY A. MYERS v. A. B. C. KIRK, A. B. C. KIRK BUS LINE, ROYAL BLUE TRANSPORTATION COMPANY, Inc., L. F. BARNARD, and PIEDMONT STAGE LINE, Inc.

(Filed 8 December, 1926.)

1. Carriers — Automobiles—Bus Lines — Combinations—Contracts—Negligence — Damages.

Where there is sufficient legal evidence that several auto-bus lines operated between certain cities and towns, for the transportation of passengers for hire interchangeably, or the drivers for one line would take the passengers who had bought tickets over another of them as if sold over its own line, a ticket sold over one of these lines being equally acceptable by the other, either of the combined lines is responsible in damages for a personal injury negligently inflicted on a passenger.

2. Negligence — Ownership—Evidence—Questions for Jury — Passengers —Damages.

Evidence held sufficient for the jury in this case, that the defendants were mutually and interchangeably engaged under a contract or agreement to transport passengers between two cities, that the driver of the automobile whose negligence caused the injury wore a uniform bearing the appealing defendant’s insignia, honored tickets bought for transportation over the other alleged combined lines, and the car was registered as that of such defendant in the department of revenue, the application for certificate so designated it, the appealing defendant re-received the car from the mechanic repaired it after the injury, and the president of the appealing defendant corporation acknowledged the ownership of the car by his corporation, etc.

3. Evidence — Questions for Jury — Issues.

Where the evidence is conflicting in an action to recover damages from a passenger auto-bus line for a personal injury alleged to have been negligently inflicted on the plaintiff while a passenger thereon, an issue is raised for the jury to determine.

4. Carriers — Evidence—Automobiles — Receipts — Appeal and Error ■ — - Harmless Error.

Where a passenger is negligently injured by the' negligence of the defendant while riding on its ear, and in his action to recover damages the question arises as to whether the defendant corporation was regularly engaged in transporting passengers for hire, the amount of money the defendant received for such services and the number of cars it thus had in use is competent evidence thereof, though not for the purpose of showing its commercial rating. Helct, further, under the facts of this case the admission of such evidence would not constitute reversible error.

o<. Evidence — Attorney and Client.

Representations of an attorney that he was acting for the defendant corporation in settling claims against it, made in the presence of defendant’s president, and not denied by him, is sufficient evidence thereof to be submitted to the jury.

Civil actioN, before Harding, J., at March Term, 1926, of Meck-leNburg.

Tbe plaintiff sued five defendants, to wit, A. B. C. Kirk, A. B. C. Kirk Bus Line, Eoyal Blue Transportation Co., Inc., L. F. Barnard and Piedmont Stage Line, for personal injury sustained by him on 6 January, 1925. Plaintiff alleged that the five defendants, at the time of his injury, and prior thereto, were engaged in the business of carrying passengers for hire from Charlotte to Greensboro by virtue of some private arrangement or mutual contractual relationship, and, as a result thereof, were acting together and sharing in the profits of transporting passengers between said points; that on 6 January, 1925, the plaintiff purchased a ticket in the city of Charlotte, marked “Kirk Bus Line,” entitling him to one continuous passage on said date from Charlotte to Greensboro; that thereafter plaintiff became a passenger in a car operated by the defendants, and by reason of negligence and carelessness of the driver the said car was negligently operated ■ and driven into a tree standing on the side of the highway, with such violence as to “practically, tear down and uproot said tree,” and as a result thereof plaintiff sustained five fractures of his left knee and knee cap, and other lacerations, cuts, wounds and bruises, resulting in serious permanent injury.

Each of the defendants filed answers denying liability. The defendant, Eoyal Blue Transportation Company, filed an answer denying liability. There was judgment against the defendants, A. B. C. Kirk, trading as A. B. C. Kirk Bus Line, Royal Blue Transportation Co., and Piedmont Stage Line. Tbe Royal Blue Transportation Co. appealed.

Tbe evidence tended to sbow that tbe plaintiff bought a ticket from tbe Kirk Bus Line in tbe New Central Hotel at Charlotte, from E. H. Griffin, and boarded a bus at tbe corner of Eighth and Tryon streets in accordance with an arrangement made by Griffin. Griffin was stationed in tbe New Central Hotel at Charlotte and testified without objection: “I was in tbe employment of all of these bus lines for about fifteen months. During tbe time of my employment with tbe parties named I gave passengers information and directions and put them on tbe first bus that went out- — -it did not make any difference whose they were. I did not bold tbe passengers for any particular bus. Tbe different bus lines named, exchanged and honored each other’s tickets. Tbe bus drivers would turn tbe tickets over to tbe bus owners. I know that L. E. Barnard and tbe Royal Blue Transportation Company were operating a car- or ears on 6 January, 1925, from Charlotte to Greensboro.” Tbe witness further testified that tbe defendants, including Royal-Blue Transportation Co., paid him for bis services $2.60 per bus per month.

L. A. Love testified for tbe plaintiff: “That on 6 January, 1925, tbe Royal Blue Transportation Co. was operating cars or busses or conveyances between Charlotte and Greensboro, and that on said date said defendant operated a seven-passenger Studebaker car with a Rex enclosure, and that Griffin was serving tbe defendants by soliciting trade, calling busses and giving information in general.”

Plaintiff testified that on tbe date of bis injury be bought a ticket from Griffin, and at tbe time of purchasing tbe ticket, Griffin stated to him that it would be all right for him to go home and wait on tbe corner of Eighth and Tyron streets, and that be would send tbe Kirk Line Bus to that point. "When tbe driver of tbe bus drove to that point be opened tbe door.of tbe car — he was driving this seven-passenger Studebaker car- — and be says to me, “Are you tbe man that tbe Kirk Bus Line Co. sent me to take to Greensboro?” I says, “I am.” And be opened tbe door and says, “All right, get in.” At that time I noticed be bad on this uniform I just spoke of — that is tbe uniform of tbe Royal Blue Transportation Co. — and my ticket was on tbe Kirk Bus Line Co. And. tbe driver said, “Kirk Bus Line Co. sent me after you— we work together; we handle each other’s passengers. Get in.” I got in . . . and presented my ticket, and be says, “I will take it up at tbe destination.”

T. L. Kirlcpatriclc and K. L. Taylor for plaintiff.

Stewart, McRae & Bobbitt for defendant, Royal Blue Transportation Go.

BkogdeN, J.

There was competent evidence of the negligent operation of the car, and also of serious and permanent injuries sustained by plaintiff. There was evidence to the effect that on 1 January, 1926, prior to the injury, the defendant, Royal Blue Transportation Co., had sold this car to the Piedmont Stage Line, Inc., and that on the date of the injury the car was owned and operated by the Piedmont Stage Line, Inc., and not by the defendant, Eoyal Blue Transportation Co. The whole case resolves itself, therefore, into the question as to whether or not there was any evidence that the Eoyal Blue Transportation Co. owned and was operating the car at the time of plaintiff’s injury.

The record discloses the following indicia of ownership and operation of said car:

1. The driver of the car causing plaintiff’s injury wore a uniform bearing the insignia “Royal Blue Transportation Co.”

2. The defendants honored each other’s tickets and placed passengers on the first bus leaving Charlotte, regardless of the ticket held.

3. The car in which the plaintiff was riding was registered in the Department of Revenue and was operating under a license issued to the defendant, Royal Blue Transportation Co., said license having been issued on 30 June, 1924.

4. The application for the registration of said car for title certificate designated the Royal Blue Transportation Co. as the owner of said car.

5. The mechanic in Salisbury, who pulled the wrecked car in and repaired it, testified, without objection, that he repaired the car and sent the bill to the Royal Blue Transportation Co., and, further, that “Royal Blue Transportation Company responded to that notice by coming after the car.”

6. L. F. Barnard, president of the Royal Blue Transportation Co., told Mr. Ervin, an attorney of Charlotte that the car causing the injury was the property of the Royal Blue Transportation Co. at the time of the wreck. There was no objection to the testimony of this witness. There was other testimony to the same effect.

¥e are of the opinion that these facts and circumstances constituted sufficient evidence of ownership and operation of said car by the defendant, Royal Blue Transportation Co., to be submitted to the jury. Freeman v. Dalton, 183 N. C., 538; Hensley v. Helvenston, 189 N. C., 636.

The evidence, it is true, was conflicting upon this phase of the case, but conflicting testimony affects only the credibility of the witness or witnesses, and does not warrant the withdrawal of the case from the jury. Shell v. Roseman, 155 N. C., 90; Christman v. Hilliard, 167 N. C., 5; Shaw v. Handle Co., 188 N. C., 236; In re Fuller, 189 N. C., 512; Smith v. Coach Line, 191 N. C., 589.

Tbe defendant excepts to evidence as to tbe amount of money collected by tbe defendant, Royal Blue Transportation Co., and also as to tbe number of cars in use. Tbis evidence was competent to sbow tbat tbe defendant was operating as a carrier of passengers on tbe date of plaintiff’s injury. If tbe evidence bad been elicited for tbe purpose of showing tbe commercial rating of defendant, it would bave been irrelevant; but, even so, it would not constitute reversible error under tbe facts and circumstances presented in tbis record. Lumber Co. v. Lumber Co., 176 N. C., 504.

Exceptions 70 and 71 relate to tbe testimony of witness Ervin, wbo testified tbat L. B. Yreeland was attorney for tbe Royal Blue Transportation Co. Tbe witness said: “Tbe only way I can answer tbat question is by stating wbat Mr. Vreeland did as attorney for tbe party to tbis action. Mr. Vreeland, as attorney for tbe Royal Blue Transportation Co., representing bimself as attorney for tbe Royal Blue Transportation Co., signed an agreement tbat all notices tbat be bad given or might be given as to taking of tbe deposition bad been waived by tbe Royal Blue Transportation Co.” Tbe witness was an attorney and was negotiating in tbe interest of O’Henry Moore, wbo was a passenger in tbe ear with tbe plaintiff, and was also injured in tbe wreck. Barnard, president of tbe defendant, was present at tbe conversation.

There were facts and circumstances which tbe jury might well bave found reasonably induced a careful and prudent person to suppose tbat tbe attorney was authorized to act for bis client in tbe matter. Bank v. Hay, 143 N. C., 326; Trollinger v. Fleer, 157 N. C., 81.

Tbe case in its final analysis presents only issues of fact, and these issues, under a proper charge, bave been resolved against tbe defendant, and tbe judgment is upheld.

No error.