Smith ex rel. Smith v. Kappas , 218 N.C. 758 ( 1941 )

ClaRksON, J.

At the close of plaintiff’s evidence, the defendant, the Straus Company, Inc., made a motion in the court below for judgment as in case of nonsuit. C. S., 567. The court below overruled this motion and in this we can see no error.

It is well settled that on motion of nonsuit the evidence which makes for plaintiff’s claim, or tends to support her cause of action, is to be taken in the light most favorable to the plaintiff, and she is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.

In stating tbe facts we did not set forth the exceptions and assignments of error or motions to strike made by defendant. They were timely and fully made by defendant to reserve every right it had. Straus Company, Inc., denied that it was liable and alleged that there was no evidence that the injury was caused by it.

In Jones v. Bank, 214 N. C., 794 (798), we find: "Hoke, J., in Powell v. Lumber Co., 168 N. C., 632, at p. 635, speaking to the question, says: ‘The general agent is one who is authorized to act for his' principal in all matters concerning a particular business or employment of a particular nature. Tiffany on Agency, p. 191. And it is the recognized rule that such an agent may usually bind his principal as to all acts within the scope of his agency, including not only the authority actually conferred, but such as is usually “confided to an agent employed to transact the business which is given him to do,” and it is held that, as to third persons, this real and apparent authority is one and the same, and may not be restricted by special or private instructions of the principal unless the limitations sought to be placed upon it are known to such persons or the act or power in question is of such an unusual character as to put a man of reasonable business prudence upon inquiry as to the existence of the particular authority claimed (citing authorities). The power of an agent, then, to bind his principal may include not only the authority actually conferred, but the authority implied as usual and necessary to the proper performance of the work entrusted to him, and it may be further extended by reason of acts indicating authority which the principal has approved or knowingly or, at times, even negligently permitted the agent to do in the course of his employment/ citing authorities. Bobbitt Co. v. Land Co., 191 N. C., 323 (328); Maxwell v. Distributing Co., 204 N. C., 309 (317-18); Dixson v. Realty Co., 204 N. C., 521; R. R. v. Lassiter & Co., 207 N. C., 408; Belk’s Dept. Store v. Ins. Co., 208 N. C., 267 (271); Grubb v. Motor Co., 209 N. C., 88.” Dickerson v. Refining Co., 201 N. C., 90; West v. Woolworth Co., 215 N. C., 211 (214); Warehouse v. Bank, 216 N. C., 246 (253-4).

Where the seller of a range, who has agreed to deliver it, with the necessary piping, and set it up ready for use, sends it by an agent, who sets it up in a defective and dangerous manner, the jury are authorized to infer that in so doing he was acting within the scope of his agency. Wrought-Iron Range Co. v. Graham, 80 Federal, 474, 25 C. C. A., 570.

The evidence was to the effect that in the contract between Jim Kappas (Jim’s Lunch) and the defendant, Straus Company, Inc., is the following: "Above equipment delivered and installed at Jim’s Lunch, Greensboro, N. C.” In Webster’s Dictionary, “installed” is defined as follows: “To set or fix, as a lighting system, for use or service.” Before the new equipment could be “installed,” the old equipment had to be removed. Jim Kappas testified tbat Straus Company, Inc., installed tbe equipment tbat be purchased from it; tbat tbis new equipment could not be installed without tbe removal of tbe old fixtures. He did not pay for tbe labor, but, of bis own knowledge, it was Mr. Patterson, tbe mechanic for Straus Company, Inc., who installed it. Patterson was pointed out “He was installing fixtures, tbe stuff.” “They bad a colored fellow and a carpenter there to move it. Tbe carpenter helped move it. . . . Tbe old equipment was mine, be took it out.” Tbe defendant introduced no evidence and Mr. Patterson was not put on tbe stand to deny what Kappas said. Kappas in bis testimony pointed out Patterson, sitting in tbe court, as tbe mechanic for Straus Company, Inc., who was installing tbe fixtures. Patterson was never put on tbe stand.

In In re Hinton, 180 N. C., 206 (213), Walker, J., said: “Evidence of tbis kind was competent for tbe jury to consider, for when one can easily disprove a charge by testimony within bis control, and which be can then produce, and fails to do it, it is some proof tbat be cannot refute tbe charge.” In York v. York, 212 N. C., 695 (702), tbe above is quoted and it is there said: “Tbe rule of tbe Hinton case, supra, has been repeatedly approved and followed in recent cases decided by tbis Court. See Walker v. Walker, 201 N. C., 183 (184); Puckett v. Dyer, 203 N. C., 684 (690); Maxwell v. Distributing Co., 204 N. C., 309 (316).”

John G-. Caldwell signed tbe contract between Straus Company, Inc., and Kappas. He was in tbe court and pointed out -by Ed Leigh as tbe man who gave him employment and paid him for taking down some of tbe old fixtures to put in tbe new. We think tbe card competent to identify tbe man who employed him and whose name was on tbe card. Tbe advertising portion is not important. There was no request tbat it be limited.

In Realty Co. v. Rumbough, 172 N. C., 741 (748-9), quoting from 1 Mecbem on Agency, sec. 261, p. 185, it is written: “ 'The existence of agency is a fact, and, like other facts, may be proved by any evidence traceable to tbe alleged principal and having a legal tendency to establish it. Informal writings of tbe alleged principal, bis letters, telegrams, book entries, and tbe like are clearly admissible. But it need not be proved by written instruments (except in tbe cases already mentioned) or by express or formal oral language. Tbe agency may be shown by conduct, by tbe relations and situation of tbe parties, by acts and declarations, by matters of omission as well as of commission, and, generally, by any fact or circumstance with which tbe alleged principal can be connected and having a legitimate tendency to establish tbat tbe person in question was bis agent for tbe performance of tbe act in controversy,’ etc. 'Agency, like any other controvertible fact, may be proved by circumstances. It may be inferred from previous employment in similar acts or transactions, or from acts of such nature and so continuous as to furnish a reasonable basis of inference that they were known to the principal, and that he would not have allowed the agent so to act unless authorized. In such cases the acts or transactions are admissible to prove agency. But in order to be relevant the alleged principal must in some way directly or indirectly be connected with the circumstances. The agent must have assumed to represent the principal, and to have performed the acts in his name and on his behalf.’ Hill v. Helton, 80 Ala., 528 (533). Mr. Mechem further says that for the purpose of proving agency a wide range may often be properly given to the testimony, provided that which is offered has a real probative tendency toward the main question in issue, or, in other words, legitimately tends to prove the fact of agency so that the jury may reasonably deduce from it that such agency existed. 2 Mechem, sec. 261, p. 187.”

In Hunsucker v. Corbitt, 187 N. C., 496 (503), quoting Lockhart’s Handbook on Evidence, sec. 154, and citing a wealth of authorities, we find: “ 'Admissions by agents, made while doing acts within the scope of the agency, and relating to the business in hand, are admissible against the principal when such admissions may be deemed a part of the res gestes, but such admissions are not admissible to prove agency; the agency must be shown aliunde before the agent’s admissions will be received.’ ”

It was in the sound discretion of the court below to allow evidence of admissions of facts and circumstances to show agency before the fact of the agency was established aliunde.

The defendant contends that “The court erred in permitting a voluntary nonsuit as to the defendant, Jim Kappas, before the close of plaintiff’s evidence; in overruling appellant’s motion for mistrial, after such voluntary nonsuit, in order to permit appellant an opportunity to avail itself of its rights under C. S., 618, to have said Kappas made a party defendant, as a joint tort-feasor; in signing judgment of voluntary non-suit as to said Kappas; in thereafter denying motion of appellant, under C. S., 618, before judgment, to make said Kappas a party defendant, and in refusing to sign an order tendered by appellant, before judgment, to make said Kappas a party defendant herein.”

The plaintiff sued Kappas and the Straus Company, Inc., as joint tort-feasors. The complaint, Article 13, alleges: “That the joint and several negligence and carelessness of the defendants Jim Kappas and the Straus Company, Inc., was the direct, proximate and sole cause of the injury and damage to the plaintiff, as aforesaid.” In the answer of Straus Company, Inc., is the following: “That the allegations of Article 13 of the complaint are denied.”

The amendment to answer of defendant Straus Company, Inc., alleges: “That this defendant denies that the plaintiff was injured through its negligence, as alleged in the pleadings of the plaintiff, and alleges that if the plaintiff received any injuries by reason of the. falling of any counter or other restaurant equipment, such injuries were either unavoidable or were caused by the negligence of Jim Kappas, trading and doing business under the style and firm name of Jim’s Lunch; but if this defendant was negligent, as alleged in the pleadings of the plaintiff, such negligence on its part concurred with the negligence of said Jim Kappas, and such negligence on the part of both of them was the proximate cause of the injuries of the plaintiff. . . . And prays also that the said Jim Kappas, trading and doing business under the style and firm name of Jim’s Lunch, be made a party defendant in this action in the manner and for the purposes set forth in section 618 of the North Carolina Code, 1939, and for such other and further relief as to the court may seem just and proper.”

In Bargeon v. Transportation Co., 196 N. C., 776 (777), is the following : “Can one defendant, sued alone for personal injury, file an answer denying negligence and liability, and then proceed to allege that the injury was due to the specific acts of negligence of a third party, and thereupon, without asking relief against such third party, have such party brought into the suit ? It is well settled under our system of procedure that in order to hold a party in court a cause of action must be alleged against him. If a defendant against whom a cause of action exists alleges a cause of action against a codefendant, growing out of the same matter, then all the parties are in court and the causes must be tried upon their merits. Bowman v. Greensboro, 190 N. C., 611, 130 S. E., 502; Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761.” See Montgomery v. Blades, 217 N. C., 654.

In Perry v. Sykes, 215 N. C., 39 (43), we find: “The defendant does not contend that, ordinarily, a nonsuit cannot be had at the close of plaintiff’s evidence, when it is insufficient to go to the jury. A defendant cannot be kept in the case in the mere capacity of a scapegoat, performing no other useful function. But the appealing defendant insists that it had the right to keep Sykes in the case as a joint tort-feasor, from whom it would be entitled to contribution under C. S., 618 (Michie’s 1935 Code). The answer simply denies negligence on the part of the Blue Bird Cab Company, and alleges that the negligence of Sykes was the sole proximate cause of the injury. The answer makes no demand for affirmative relief, and is insufficient to support the exception. Walker v. Loyall, 210 N. C., 466, 187 S. E., 565; Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761.”

In the present case we think the voluntary nonsuit was improperly granted. In the Perry case, sufra, “the answer made no demand for affirmative relief.” In the original answer in the present action no demand was made for affirmative relief, but before the trial an amended answer was filed by the Straus Company, Inc., which we think sufficient to have Kappas held as a party defendant under N. C. Code, 1939 (Michie), sec. 618, which, in part, is as follows: “In all cases in the courts of this state wherein judgment has been, or may hereafter be, rendered against two or more persons or corporations, who are jointly and severally liable for its payment either as joint obligors or joint tort-feasors, and the same has not been paid by all the judgment debtors by each paying his proportionate part thereof; if one of the judgment debtors shall pay the judgment creditor, either before or after execution has been issued, the amount due on said júdgment, and shall, at the time of paying the same, demand that said judgment be transferred to a trustee for his benefit, it shall be the duty of the judgment creditor or his attorney to transfer without recourse such judgment to a trustee for the benefit of the judgment debtor paying the same; and a transfer of such judgment as herein contemplated shall have the effect of preserving the lien of the judgment and of keeping the same in full force as against any judgment debtor who does not pay his proportionate part thereof to the extent of his liability thereunder in law and in equity, and in the event the judgment was obtained in an action arising out of a joint tort, and only one, or not all of the joint tort-feasors were made parties defendant, those tort-feasors made parties defendant and against whom judgment was obtained, may, in an action therefor, enforce contribution from the other joint tort-feasors; or at any time before judgment is obtained, the joint tort-feasors made parties defendant may, upon motion, have the other joint tort-feasors made parties defendant.”

In Mangum v. R. R., 210 N. C., 134 (137), it is said: “In accordance with this section (618), the defendants Southern Railway Company and North Carolina Railroad Company (original parties) prayed that the receivers of Seaboard Air Line Railway Company, residents of Virginia, be made parties defendant, and allege that they are not guilty of negligence; but further allege, in substance, that if they are guilty of negligence they are liable only as joint tort-feasors with the receivers. We think that this procedure is permissible under the section, supra. The plaintiff, from her allegations in the complaint against the original defendants, cannot be affected by this procedure of the original defendants under the statute bringing in the receivers as joint tort-feasors.” Freeman v. Thompson, 216 N. C., 484.

It goes without saying that at the close of plaintiff’s evidence or at the close of all the evidence, if there was no sufficient evidence to be submitted to the jury under N. C. Code, supra, see. 567, against the defendant Jim Kappas, the court below could have, on proper motion made by him, granted a nonsuit.

The painstaking and careful judge in the court below had no direct authority from this Court to guide him in the procedure under this statute. ¥e think defendant Straus Company, Inc., alleged enough in its amended answer to hold Jim Kappas in the action so that the rights of both could be determined in the present action, and that there was error in granting the motion for nonsuit complained of.

For the reasons given, there must be a

New trial.