Davis v. Martini , 233 N.C. 351 ( 1951 )

64 S.E.2d 1 (1951) 233 N.C. 351

DAVIS
v.
MARTINI et al.

No. 93.

Supreme Court of North Carolina.

March 21, 1951.

Itimous T. Valentine, Nashville, for plaintiff, appellee.

Battle, Winslow, Merrell & Taylor, Rocky Mount, for defendant, James Everitt Morley, appellant.

ERVIN, Justice.

The legislature acted within the limits of its constitutional authority in enacting the statute now embodied in G.S. § 1-105, which authorizes service of process on the Commissioner of Motor Vehicles as the agent of a nonresident defendant in an action arising out of his operation of a motor vehicle on a public highway of this State. Wynn v. Robinson, 216 N.C. 347, 4 S.E.2d 884; Bigham v. Foor, 201 N.C. 14, 158 S.E. 548; Ashley v. Brown, 198 N.C. 369, 151 S.E. 725.

Under this statute, the ownership or lack of ownership by the nonresident defendant of the motor vehicle involved in the accident is of no legal consequence in so far as his amenability to constructive service of process is concerned. Queen City Coach Co. v. Chattanooga Medicine Co., 220 N.C. 442, 17 S.E.2d 478; Wynn v. Robinson, supra. It provides for constructive service of process upon a nonresident defendant in either of the following situations:

1. Where the nonresident was personally operating the vehicle.

2. Where the vehicle was being operated for the nonresident, or under his control or direction, express or implied.

The facts found by the trial court sustain the ruling on the special appearance, and are binding on the parties to the appeal if they are supported by competent evidence. Bigham v. Foor, supra.

The defendant Morley has reserved exceptions to the findings and to the denial of his requests for special findings, and has thereby challenged the sufficiency of the evidence to support the crucial finding that Burt was operating the tractor-trailer combination for him, or under his control or direction at the time of the collision between it and the truck owned by the plaintiff.

The affidavits offered by plaintiff at the hearing on the special appearance contained competent evidence revealing the facts and warranting the inferences set forth in the next five paragraphs.

1. The defendant, Morley, who did business under the style "Morley's Transit," had offices at Middletown and New York City in New York, and at Lake Wales in Florida.

2. On January 2, 1950, the defendant Morley, acting through his office at Lake Wales, Florida, issued a straight bill of lading in the name of "Morley's Transit, Brokerage Division, Insulated Refrigerated Tractor-Trailer Service, 204 Franklin Street, New York 13, New York," acknowledging receipt of 350 packages of oranges from the shipper, the Star Fruit Company, at Lake Alfred, Florida, and agreeing to carry them from that place to the consignee, the Atlantic and Pacific Tea Company, at Philadelphia, Pennsylvania. Under the bill, all carriage charges were payable directly to "Morley's Transit."

3. The defendant Morley, acting through his office at Lake Wales, Florida, gave these specific directions: That the oranges should be transported from the place of shipment to the place of destination in the tractor-trailer combination described in the complaint; that Burt should drive such combination; and that Burt should leave Lake Alfred, Florida, at 5:00 P. M. on January 2, 1950, and arrive at Philadelphia, Pennsylvania, not later than 6:00 P. M. on January 4, 1950.

4. Although the tractor-trailer combination was registered in the name of the defendant Martini in the State of New Jersey, the tractor bore the name "Morley" in letters approximately 14 inches high on its front, and the trailer carried this inscription in large words and figures on each side: "Hauling for Morley's Transit, Brokerage Div., Middletown, N. Y., Phone 3518, New York City, Phone CA 6-1403."

5. The collision giving rise to this action occurred on a public highway of North Carolina while the tractor-trailer combination driven by Burt was carrying the oranges from Lake Alfred, Florida, to Philadelphia, Pennsylvania.

These facts and inferences support the finding that Burt was operating the tractor-trailer combination for Morley, or under Morley's control or direction at the time of the accident resulting in this litigation.

To be sure, the defendant Morley offered counter affidavits stating in specific detail that Morley was a mere freight forwarder, having no control over the tractor-trailer combination or its driver, Burt; that Morley simply engaged Martini, an independent contractor, to transport the oranges from Florida to Pennsylvania; and that the collision occurred while Martini was carrying out his undertaking by means of his own tractor-trailer combination operated by his own driver, Burt.

The trial court was necessarily called on to weigh the contradictory affidavits, and to determine for itself the crucial issue of fact arising on the special appearance. Since its decision thereon is supported by competent evidence, the resultant ruling must be

Affirmed.