Wynn v. Robinson, 216 N.C. 347 (1939)

Oct. 18, 1939 · Supreme Court of North Carolina
216 N.C. 347

JOHN R. WYNN, Administrator, v. EDWARD H. ROBINSON et al.

(Filed 18 October, 1939.)

Process § 8 — In this action for alleged negligent operation of automobile, service of process on nonresident through Commissioner of Revenue held valid.

An affidavit of a salesman that the details of his schedule and the control of his automobile were determine by him, subject to the approval of his corporate employer, supports the finding of the' court that the automobile was being operated for the corporate employer and under its control and direction, express or implied, within the meaning of chapter 75, Public Laws of 1929, and, in an action to recover for alleged negligent operation of the car, service of process on the corporate employer through the Commissioner of Revenue under the provisions of the statute is valid, and held, further, the statute is constitutional.

Appeal by defendant, Tbe Alligator Company, from Bone, J., at August Term, 1939, of JohNstoN.

Civil action to recover damages for death of plaintiff’s intestate alleged to have been caused by the neglect, default or wrongful act of the defendants when the automobile driven by defendant Edward H. Robinson struck plaintiff’s intestate as he was crossing the highway after alighting from a school bus near his home in Johnston County on the afternoon of 3 March, 1939.

Service of summons was had upon the Commissioner of Revenue of North Carolina, as agent of the nonresident defendant, The Alligator Company, under ch. 75, Public Laws 1929.

*348Tbe corporate defendant entered a special appearance and moved to-vacate tbe attempted service of process and to dismiss for want of jurisdiction.

Touching tbe operation of tbe automobile in question, tbe court found tbe following facts:

1. That tbe automobile was owned by Edward H. Robinson, an employee or salesman of tbe corporate defendant, and was being driven by bim at tbe time, in tbe discharge of bis duties, as such employee or salesman, from Fayetteville, N. C., to Smithfield, N. C.

2. That tbe corporate defendant “exercised some degree of control over Robinson with respect to tbe manner in which be was to engage in. soliciting orders for it and tbe times and places therefor.”

3. That tbe corporate defendant “exercised some degree of control over tbe automobile operated and owned by Robinson and tbe hours, times and places in which be worked.”

These findings are based upon an affidavit of Robinson in which he-says tbe details of bis schedule and tbe control of bis automobile were-determined by bim “subject to tbe approval of tbe company.”

From denial of tbe motion lodged by tbe corporate defendant on special appearance, Tbe Alligator Company appeals, assigning errors.

L. L. Levinson and Lawrence H. Wallace for plaintiff, appellee.

Thomas W. Ruffin for defendant, appellant.

Stacy, C. J.

It is provided by ch. 75, Public Laws 1929, that in any action or proceeding against a nonresident, “growing out of any accident or collision in which said nonresident may be involved by reason of tbe operation by bim, for bim, or under bis control or direction, express or implied, of a motor vehicle on any of tbe public highways of this State,” service may be obtained through tbe Commissioner of Revenue. Compliance with tbe provisions of this statute is conceded in tbe instant case.

Tbe question for decision is whether tbe automobile which struck plaintiff’s intestate was being operated at tbe time “for” tbe corporate defendant, or under its “control or direction, express or implied.” Tbe court found that tbe automobile was so operated at tbe time, and accordingly denied tbe defendant’s motion to vacate tbe service of process and to dismiss for want of jurisdiction. Denton v. Vassiliades, 212 N. C., 513, 193 S. E., 737. Tbe ruling is supported by tbe record. Bigham v. Foor, 201 N. C., 14, 158 S. E., 548.

Tbe case of Plott v. Michael, 214 N. C., 665, 200 S. E., 431, cited by appellant, is not in point. It involved an attempted service of process under a different statute, C. S., 1137. See White v. Lumber Co., 199 *349N. C., 410, 154 S. E., 620. Likewise, tbe case of Smith v. Haughton, 206 N. C., 587, 174 S. E., 506, is distinguishable, for in that case there was no evidence that the automobile, there owned by the agent and representative of the corporate defendant, was being operated at the time in the business of the corporate defendant, “for” it, or under its “control or direction, express or implied.” Here, just the reverse appears.

The constitutionality of ch. 75, Public Laws 1929, was upheld in Ashley v. Brown, 198 N. C., 369, 151 S. E., 725. Defendant’s present challenge must meet with a like result.

The ruling from which the defendant appeals will be upheld.