McCartha v. Colonial Ice Co. , 220 N.C. 367 ( 1941 )

DeviN, J.

The only evidence in the case was that offered by the plaintiff. From this the court below was of the opinion that there was no controversy about the fact that the death of plaintiff’s intestate was caused by the negligent operation of the coal laden motor truck, and that the only question was as to who was legally responsible for the operation of the truck, the Colonial Ice Company or Johnson & Son, or both.

The court was also of the opinion that the question of responsibility was to be determined by the terms of the contract between these defendants wherein their relationship to each other and to the transaction was defined. The court was further of the opinion that under the terms of the contract the defendant Ice Company was given and exercised the exclusive right to deliver all coal sold by Johnson & Son in Gastonia; that while A. L. Suddeth, the manager of the Ice Company, was also manager for Johnson & Son, his duties as representing the latter, as defined and limited by the contract, were to assist Johnson & Son in the sale of coal and in keeping the records; and that in the delivery of coal he represented the Ice Company alone; and that, if, in any view, he could be regarded as the agent of Johnson & Son in attempting to deliver coal by the use of the J ohnson truck, he was acting in violation of the express terms of section six of the contract, and thus was outside the scope of any agency or employment by Johnson & Son. Hence, the court below reached the conclusion that under the uncontradicted evidence the defendant lee Company was solely responsible for the operations in respect to the delivery of coal to the plaintiff, and liable for the negligence of those employed, at the time, by the Ice Company to make the delivery, and that the unfortunate result was in no way attributable to negligence on the part of Johnson & Son. In accord with this view the court gave peremptory instructions to the jury upon the appropriate issues submitted relating to the liability of the parties for the wrongful death of plaintiff’s intestate.

After careful consideration of the record, we are of opinion that the learned judge who presided over the trial of this cause below has properly interpreted the relationship of the parties to the transaction complained of, and that he has reached the correct conclusion that the death of plaintiff’s intestate was due to negligence attributable to the defendant Ice Company, alone.

It is apparent from the terms of the contract between the defendants that the defendant Ice Company was given the exclusive right to deliver the coal sold by J ohnson & Son in Gastonia, at a stipulated price per ton. It was constituted an independent contractor and had exclusive control of the manner and method of delivery. The employees on the coal yard were paid by Johnson & Son for their work on the premises, and by the Ice Company for work in delivering coal. A part of the salaries of the manager and the clerk was paid by Johnson & Son for assisting in the sale of coal and keeping records, but in all other respects and for all other .purposes these were the employees of the Ice Company. While the truck used on the occasion of the fatal injury to plaintiff’s intestate belonged to Johnson & Son, its use was directed by Mr. Suddeth and Mrs. Campbell for the purpose of delivering coal. The delivery of the coal was a duty which devolved upon them as employees of the Ice Company. It would seem to follow, therefore, that in directing the use of this truck and in attempting to deliver the coal to the premises of the plaintiff therein, they were acting within the scope of their employment by the Ice Company, and not as agents for Johnson & Son. Negligence of the employees in the use and operation of the truck on this occasion, for this purpose, proximately causing the death of plaintiff’s intestate, was attributable to the Ice Company under the principle of respondeat superior.

The appellant noted exception to the following statement by the trial judge in his charge to the jury: “It is admitted, gentlemen — not in the pleadings, hut it has been admitted by all counsel in their argument to you — that Mrs. McCartha’s death was caused by the negligence of somebody; in other words, that she, herself, was without fault.” No objection was made at the time, hut later, after the conclusion of the charge, upon his attention being called to this portion of his charge, the judge caused a statement to be entered in the record to the effect that “the only admission made by the defendant Colonial Ice Company or its counsel, either of record or during the trial or in the argument to the jury, was in substance that the death of Mrs. McCartha was due to no fault or negligence on her own part, but was due to the fault of some other person.”

However, neither the reference by the judge to what he construed to be admissions in the argument that Mrs. McCartha’s death was caused by the negligence of somebody, nor his instructions to the jury that the death of plaintiff’s intestate was due to the negligence of one or both of the defendants, can be held prejudicial, since it was admitted that she was without fault, and the negligent operation of the truck was not controverted. The evidence was all one way.

The provision in the contract that the “Colonial (Ice Company) shall in no way be responsible for any loss or damage to Johnson & Son resulting from fire, theft, tornado or other cause, or for death or personal injuries which may be sustained by their employees or customers in the operation of said coal business,” is not material to this controversy, since the clause exempts the Ice Company from responsibility to Johnson & Son for loss or damage resulting from the causes enumerated, and no loss or damage has been suffered by, nor has any liability been imposed, upon Johnson & Son. This clause alone may not he held to exempt the Ice Company from liability for a tort causing injury to a third person, for which it alone was liable, or to impose liability, primary or secondary, upon Johnson & Son therefor.

It appears here, as not infrequently happens, that the same persons were agents of, and paid by, two different principals. This sometimes causes confusion where circumstances arise which produce conflicting loyalties. But here the line is clearly marked. The duties and authority of the agents and the consequent liability of the two principals for their acts are defined by a written contract which all parties agree was in force at the time and applicable to the circumstances out of which plaintiff’s action arose. The agents acted severally for each principal. There was no conflict. It is a sound principle in the law of agency that where an agent by an agreement of all parties is employed by two principals and acts severally for each he cannot bind one principal in the separate business of the other.

The exception to the charge of the court on the issue of damages cannot be sustained. The charge seems to have stated the rule for the admeasurement of damages for wrongful death in substantial accord with the established precedents.

While the trial judge did not state his peremptory instructions to the jury, consequent upon his expressed opinion of the law applicable to the facts of the case, in the form approved by this Court, this may not, under the circumstances of this case, be held for error, requiring a new trial. The distinction is pointed out in McIntosh Prac. & Proe., 632. Since the trial judge was correct in his view of the law, the manner in which he expressed it, while not approved, would not warrant that the case be remanded merely for the restatement of substantially the same instructions in different language.

The appellant’s assignments of error relating to the submission of issues, and to the rulings of the court on the admission of testimony are without substantial merit. No prejudicial effect upon the result is apparent.

We conclude that in the trial there was

No error.