Neff v. Queen City Coach Co.

192 S.E.2d 587 (1972) 16 N.C. App. 466

Garland M. NEFF
v.
QUEEN CITY COACH COMPANY, a corporation.

No. 7226DC789.

Court of Appeals of North Carolina.

November 22, 1972.

Hicks & Harris by Richard F. Harris, III, Charlotte, for plaintiff appellee.

John F. Ray, and Myers & Collie by Charles T. Myers, Charlotte, for defendant appellant.

PARKER, Judge.

At the close of plaintiff's evidence and again at the close of all of the evidence defendant moved for a directed verdict in its favor. Denial of these motions is the subject of the exceptions included in appellant's first assignment of error.

A motion for directed verdict under Rule 50(a) of the Rules of Civil Procedure is appropriate when trial is held before a jury. This case was tried by the judge without a jury. The appropriate motion in such case is for involuntary dismissal under Rule 41(b). The distinction is more than one of mere nomenclature, as a different test is to be applied to determine the sufficiency of the evidence to withstand the motion when the case is tried before court and jury than when the court alone is finder of the facts. Bryant v. Kelly, 10 N.C.App. 208, 178 S.E.2d 113, rev'd on other grounds, 279 N.C. 123, 181 S.E.2d 438. In the present case defendant not only made the wrong motions, but in doing so failed to comply with Rule 6 of the General Rules of Practice for the Superior and District Courts Supplemental to the Rules of Civil Procedure, as adopted by our Supreme Court pursuant to G.S. § 7A-34 effective 1 July 1970. This rule requires that "[a]ll motions, written or oral, shall state the rule number or numbers under which the movant is proceeding." Mull v. Mull, 13 N.C.App. 154, 185 S.E.2d 14; Terrell v. Chevrolet Co., 11 N.C.App. 310, 181 S.E.2d 124; Lee v. Rowland, 11 N.C.App. 27, 180 S.E.2d 445. Adherence to this requirement would have contributed to precision in making the appropriate motions in this case. Though defendant's motions were not properly made, nevertheless we shall treat defendant's motions for directed verdict as motions for an involuntary dismissal under Rule 41(b) and shall pass on the merits of the questions which defendant seeks to raise by this appeal. Mills v. Koskot Interplanetary, 13 N.C. App. 681, 187 S.E.2d 372.

Defendant first contends its motions should have been allowed because plaintiff's evidence showed that his wife, and not he, was the owner of the most valuable portion of the contents of the lost baggage, from which defendant argues that plaintiff is not the real party in interest and therefore is not entitled to prosecute this claim. There is no merit in this contention. Plaintiff's evidence showed that he was the owner of a portion of the contents of the lost bag and as to the remainder, the clothing of his wife, he was in lawful possession and was at least a bailee. "It has been uniformly held that the bailee has a right of action against a third party, who by his negligence causes the loss of or an injury to the bailed articles, and this right has been held to be the same, even though the bailee is not responsible to the bailor for the loss." Hopkins v. Colonial Stores, Inc., 224 N.C. 137, 29 S.E.2d 455; 8 Am.Jur.2d, Bailments, § 247. Furthermore, motion has been made in this Court through counsel that plaintiff's wife be made a party-plaintiff. A similar motion was made and allowed in Merchant v. Lassiter, 224 N.C. 343, 30 S.E.2d 217. The motion to make plaintiff's wife an additional party-plaintiff is also allowed in the case now before us. This completely disposes of any contention that this action must be dismissed because it is not prosecuted in the name of the real party in interest. A bailor and bailee may jointly maintain an action for the conversion of or injury to the bailed property. Peed v. Burleson's, Inc., 242 N.C. 628, 89 S.E.2d 256; G.S. § 1A-1, Rule 20(a).

Defendant next contends that its motions to dismiss should have been allowed because certain of plaintiff's evidence indicates that other subsidiaries of Continental Trailways, Inc., and not the defendant, operated the bus on which plaintiff and his wife and child traveled and on which his baggage was transported. In this connection, plaintiff called as a witness one of the attorneys for defendant, who testified that Coastal Stages Corporation was the corporation which operated the bus on which plaintiff traveled for the portion of his trip between Charleston and Orangeburg, and that Carolina Scenic Stages, Inc. operated the bus for the portion of the trip from Orangeburg to Charlotte. The evidence indicates that Coastal Stages Corporation, Carolina Scenic Stages, Inc., and defendant, Queen City Coach Company, are all subsidiaries of Continental Trailways, Inc., and the names of all three companies appear on the tickets sold to plaintiff after the words "Issued by:" and before the words "all doing business as Continental Trailways." However that may be, and despite the testimony of defendant's attorney, the trial court in the present case made, among others, the following findings of fact:

"7. On January 8, 1970, the plaintiff was a paid passenger on defendant's bus traveling from Charleston Air Force Base, South Carolina, to Charlotte, North Carolina.

"8. On said date, the plaintiff checked a World War II brown B-4 military bag bearing the inscription `Lt. G. M. Neff 01331856' with the defendant for transportation from Charleston Air Force Base, South Carolina, to Charlotte, North Carolina, and the plaintiff was given a baggage claim check bearing the number F870-713 by the defendant."

* * * * * *

"14. The plaintiff's baggage was duly accepted by and taken into the exclusive custody, control, and possession of the defendant as a carrier for transportation by its motor vehicle, a bus, in interstate commerce from Charleston Air Force Base, South Carolina, to Charlotte, North Carolina."

Support for these findings may be found not only in plaintiff's testimony but in defendant's own verified pleadings. In its answer defendant admitted the allegations in paragraph 3 of the complaint that "[o]n or about January 8, 1970, the defendant was engaged in the business of transporting passengers as a common carrier for hire in interstate commerce from Charleston Air Force Base and other cities in South Carolina to Charlotte and other cities in North Carolina," and in a further answer and defense defendant made reference to the baggage tariff which it had on file with the Interstate Commerce Commission and alleged that such "tariff governs the transportation of baggage between the defendant and its passengers, including the plaintiff; that the said tariff constitutes a contract under which the defendant transported the baggage of the plaintiff and by which contract the defendant limited its liability for failure to deliver the baggage of the plaintiff to Fifty Dollars." (Emphasis added.) The trial court's findings, being supported by admissions and allegations in defendant's own verified pleadings, are binding on this appeal. The trial court was not required to accept as conclusive the contrary testimony given by defendant's attorney, even when he was presented as a witness for the plaintiff.

Finally, defendant contends its motions should have been allowed because of the $50.00 limitation on its liability and its offer to allow judgment to be taken against it in that amount as contained in its further answer and defense. We do not agree. "[I]n absence of statutory authorization, a common carrier or other public utility may not contract for its freedom from liability for injury caused by its negligence in the regular course of its business." Jordan v. Storage Co., 266 N.C. 156, 146 S.E.2d 43. However, a common carrier may, by contract, limit its liability if it is expressly authorized to do so by applicable statute or by a regulatory body having power to grant that privilege. Neece v. Greyhound Lines, 246 N.C. 547, 99 S.E.2d 756. In the present case, plaintiff's loss occurred while his property was being moved in interstate commerce. Therefore, appropriate federal statutes are here applicable. Clott v. Greyhound Lines, 278 N.C. 378, 180 S.E.2d 102.

The particular federal statute here relevant is 49 U.S.C. § 20(11), which was made applicable to motor carriers by 49 U.S.C. § 319. In general, 49 U.S.C. § 20(11) makes a common carrier to which that statute is applicable liable for loss or damage to property transported by it "for the full actual loss, damage, or injury to such property caused by it . . ., notwithstanding any limitation of liability or limitation of the amount of recovery. . . in any contract . . .; and any such limitation, without respect to the manner or form in which it is sought to be made is declared to be unlawful and void." Certain exceptions to the rule declaring limitations on the carrier's liability void are contained in provisos in the statute. Our Supreme Court held in Neece v. Greyhound Lines, supra, that "[t]he authority of motor carriers to limit their liability is found in the second portion of the provision" in 49 U.S.C. § 20(11). This portion provides that the rule making limitations on liability void shall not apply, "second, to property . . . received for transportation concerning which the carriers shall have been or shall be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released . . .; and any tariff schedule which may be filed with the commission pursuant to such order shall contain specific reference thereto and may establish rates varying with the value so declared and agreed upon. . . ."

In Neece v. Greyhound Lines, supra, our Supreme Court said:

"Before a motor carrier can limit its liability for negligent loss or damage to property entrusted to it, it must show: (1) it received the property as a common carrier; (2) it issued a written receipt which contained the asserted limitation; (3) the Interstate Commerce Commission has expressly authorized the limitation which is based on a rate differential.

"If each of these conditions is not shown to exist, the asserted limitation has no effect." (Emphasis added.)

In the case before us the evidence was sufficient to show the first two of the foregoing conditions, but there was no competent evidence to show the existence of the third. In an apparent attempt to show compliance with the third condition, defendant sought to introduce in evidence a copy of what defendant's counsel contends is the applicable baggage tariff on file with the Interstate Commerce Commission. This document, defendant's Exhibit 1, consists of thirty-three printed pages and has printed on the cover page, among other matters, the following: "Issued by National Bus Traffic Association, Inc., Agent." The trial judge sustained plaintiff's objection to introduction in evidence of this document, but did allow it "to illustrate the testimony" of a witness presented by the defendant. In the judgment appealed from the trial court found that "[t]here was no competent evidence presented to this Court that the Interstate Commerce Commission or any other regulatory body, or statute had expressly authorized the limitation of defendant's liability in this case to $50.00." In this finding and ruling we find no error. 49 U.S.C. § 16(13) provides that copies of certain records filed with the Interstate Commerce Commission, when certified by the secretary of the commission, under the commission's seal, shall be received in evidence with like effect as the originals. G.S. § 1A-1, Rule 44 of the North Carolina Rules of Civil Procedure provides for the method of proof of official records. Defendant's proffered Exhibit 1 conformed neither with 49 U.S.C. § 16(13) nor with G.S. § 1A-1, Rule 44, and was properly excluded from evidence.

We note that plaintiff's action in this case, as set forth in his complaint, was not predicated on the theory that defendant became liable as an insurer. See Annot., Motor Carrier—Loss of Baggage, 68 A.L.R. 2d 1350, § 2(b), p. 1353. Instead, plaintiff based his action on the theory that the loss of his baggage was proximately caused by defendant's failure to exercise due care. In this connection there was ample evidence to support the trial court's finding No. 13 that "[t]he defendant failed to exercise reasonable care in the transporting and protection of the plaintiff's baggage and the contents thereof." A prima facie case of actionable negligence was established when plaintiff offered evidence tending to show (1) that his property was delivered to defendant, (2) that defendant accepted it and therefore had possession and control of it, and (3) that defendant failed to return the property. Clott v. Greyhound Lines, supra. In addition, plaintiff's evidence tended directly to establish negligence on the part of defendant's bus driver in failing to supervise the removal of baggage from the bus, when he stopped it at night, not at the bus station, at Orangeburg, S. C. Defendant's contention that it could be held liable in this case only if found guilty of gross negligence and that the trial court failed to so find is without merit. Plaintiff's payment for his ticket as a passenger constituted sufficient consideration to make defendant a bailee for hire, and we find no merit in defendant's contention that the contents of the lost bag included such an extensive wardrobe for plaintiff's wife that the lost articles could not properly be considered "baggage" within the meaning of that term as used to designate property which must be carried by a carrier without additional compensation beyond the passenger's fare.

We have carefully examined all of defendant's assignments of error, and find no prejudicial error. The motion that plaintiff's wife be added as a party-plaintiff to the action having been allowed, with the addition of plaintiff's wife as a party-plaintiff the judgment appealed from is

Affirmed.

CAMPBELL and MORRIS, JJ., concur.