{ "id": 8630928, "name": "J. J. MISENHEIMER v. FELIX HAYMAN", "name_abbreviation": "Misenheimer v. Hayman", "decision_date": "1928-05-09", "docket_number": "", "first_page": "613", "last_page": "614", "citations": [ { "type": "official", "cite": "195 N.C. 613" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "192 N. C., 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626766 ], "opinion_index": 0, "case_paths": [ "/nc/192/0760-01" ] }, { "cite": "194 N. C., 750", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618787 ], "opinion_index": 0, "case_paths": [ "/nc/194/0750-01" ] }, { "cite": "176 N. C., 529", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656630 ], "opinion_index": 0, "case_paths": [ "/nc/176/0529-01" ] }, { "cite": "183 N. C., 538", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657201 ], "opinion_index": 0, "case_paths": [ "/nc/183/0538-01" ] } ], "analysis": { "cardinality": 261, "char_count": 3893, "ocr_confidence": 0.499, "pagerank": { "raw": 1.8033444595782581e-07, "percentile": 0.7167390840160951 }, "sha256": "0298f1ce425527e39e6911e9b3543332a5b5ce2b922ed1e3b0249899b923db90", "simhash": "1:a006def816875401", "word_count": 657 }, "last_updated": "2023-07-14T20:22:12.241767+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "J. J. MISENHEIMER v. FELIX HAYMAN." ], "opinions": [ { "text": "Adams, J.\nThe plaintiff alleges that on the occasion complained of he was the owner of a Buick sedan and the defendant of a Ford delivery truck; that the defendant was engaged in the market business in the city of Charlotte; that Henry Franklin, while engaged as an employee in the defendant\u2019s business, damaged the plaintiff\u2019s car by negligently running the defendant\u2019s truck against it and causing it to plunge down an embankment. The defendant denied the plaintiff\u2019s material allegations and pleaded contributory negligence. He introduced no evidence and moved to dismiss the action as in ease of nonsuit. The motion was denied and from the judgment rendered upon the issues the defendant appealed.-\nThe determination of the defendant\u2019s exceptions pivots on the two questions whether there is more than a scintilla of evidence tending to identify the truck as the property of the defendant, and to show that the driver was in the service of the defendant when the injury occurred.\nIn bis answer tbe defendant admits tbat Henry Franklin was in bis employment and, at one time operated one of bis delivery trucks. On tbe disputed points there was evidence tending to sbow tbat tbe defendant was engaged in tbe meat-market business and ran a delivery service; tbat tbe truck wbicb struck tbe plaintiff\u2019s car bore on its body tbe words, \u201cFelix Hayman\u201d or \u201cHayman\u2019s Meat Market\u201d; tbat it was driven by a colored man; tbat trucks corresponding to it in description bad been seen at tbe defendant\u2019s place of business; tbat a truck of similar description bad often been noticed passing along tbe road on wbicb tbe collision occurred.\nUnquestionably there is evidence of the driver\u2019s negligence, and in our opinion there is sufficient evidence of the defendant\u2019s ownership of the truck. Tbe defendant contends, however, tbat if this be admitted it would still be incumbent upon the plaintiff to show tbat the driver was engaged in the performance of the defendant\u2019s business. This, of course, is a correct proposition; but there is at least some evidence tbat the driver of the truck was acting within the scope of bis authority and in furtherance of bis employer\u2019s business. Freeman v. Dalton, 183 N. C., 538; Clark v. Sweaney, 176 N. C., 529. In Tyson v. Frutchey, 194 N. C., 750, and Grier v. Grier, 192 N. C., 760, there was direct evidence tbat the driver was not employed in the defendant\u2019s business at the time of the injury. The defendant was engaged in selling and delivering meat to bis customers, and there is evidence that bis truck was frequently seen on the road in question coming from and returning to the city, according to one witness, sometimes once a day and sometimes every other day. While the evidence on this point is not necessarily convincing, we cannot bold as a matter of law that it is devoid of such probative force as not to require its submission to the jury.\nNo error.", "type": "majority", "author": "Adams, J." } ], "attorneys": [ "0. A. Duclcworth and James A. Loclchairt for plaintiff.", "John M. Robinson and 8. E. Vest for defendant." ], "corrections": "", "head_matter": "J. J. MISENHEIMER v. FELIX HAYMAN.\n(Filed 9 May, 1928.)\nNegligence \u2014 Evidence\u2014Sufficiency\u2014Nonsuit\u2014Master and Servant.\n\u25a0 Where the plaintiff seeks damages in his action against the defendant for the negligence of the latter\u2019s delivery truck driver in colliding with the plaintiff\u2019s automobile on the highway, the evidence, as to the identity of the defendant\u2019s driver and that he was acting within the scope of his employment at the time of the injury complained of, is sufficient to take the ease to the jury and deny defendant\u2019s motion for a nonsuit under the facts of this case.\nAppeal by defendant from Harding, J., at December Special Term, 1927, of Mecklenburg.\nAction for damage to an automobile alleged to have been caused by defendant\u2019s negligence. The issues of negligence, contributory negligence and damages are answered in favor of the plaintiff. Exception and appeal by defendant.\n0. A. Duclcworth and James A. Loclchairt for plaintiff.\nJohn M. Robinson and 8. E. Vest for defendant." }, "file_name": "0613-01", "first_page_order": 685, "last_page_order": 686 }