{ "id": 8624753, "name": "BETTY JEAN SMITH, by Her Next Friend, P. K. SMITH, v. JIM KAPPAS, Trading and Doing Business Under the Style and Firm Name of JIM'S LUNCH, and THE STRAUS COMPANY, INC.", "name_abbreviation": "Smith ex rel. Smith v. Kappas", "decision_date": "1941-01-08", "docket_number": "", "first_page": "758", "last_page": "769", "citations": [ { "type": "official", "cite": "218 N.C. 758" } ], "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": "216 N. C., 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605974 ], "opinion_index": 0, "case_paths": [ "/nc/216/0484-01" ] }, { "cite": "210 N. C., 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624010 ], "opinion_index": 0, "case_paths": [ "/nc/210/0134-01" ] }, { "cite": "187 S. E., 565", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "210 N. C., 466", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627075 ], "opinion_index": 0, "case_paths": [ "/nc/210/0466-01" ] }, { "cite": "215 N. C., 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627887 ], "opinion_index": 0, "case_paths": [ "/nc/215/0039-01" ] }, { "cite": "217 N. C., 654", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615146 ], "opinion_index": 0, "case_paths": [ "/nc/217/0654-01" ] }, { "cite": "142 S. E., 761", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "opinion_index": 0 }, { "cite": "195 N. C., 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630533 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/195/0517-01" ] }, { "cite": "130 S. E., 502", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N. C., 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611307 ], "opinion_index": 0, "case_paths": [ "/nc/190/0611-01" ] }, { "cite": "196 N. C., 776", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629603 ], "opinion_index": 0, "case_paths": [ "/nc/196/0776-01" ] }, { "cite": "187 N. C., 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654234 ], "opinion_index": 0, "case_paths": [ "/nc/187/0496-01" ] }, { "cite": "80 Ala., 528", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3386096 ], "opinion_index": 0, "case_paths": [ "/ala/80/0528-01" ] }, { "cite": "172 N. C., 741", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11255443 ], "opinion_index": 0, "case_paths": [ "/nc/172/0741-01" ] }, { "cite": "203 N. C., 684", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618825 ], "opinion_index": 0, "case_paths": [ "/nc/203/0684-01" ] }, { "cite": "201 N. C., 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623663 ], "opinion_index": 0, "case_paths": [ "/nc/201/0183-01" ] }, { "cite": "212 N. C., 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618741 ], "opinion_index": 0, "case_paths": [ "/nc/212/0695-01" ] }, { "cite": "180 N. C., 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653345 ], "opinion_index": 0, "case_paths": [ "/nc/180/0206-01" ] }, { "cite": "25 C. C. A., 570", "category": "reporters:federal", "reporter": "C.C.A.", "opinion_index": 0 }, { "cite": "216 N. C., 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597508 ], "opinion_index": 0, "case_paths": [ "/nc/216/0246-01" ] }, { "cite": "215 N. C., 211", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628895 ], "opinion_index": 0, "case_paths": [ "/nc/215/0211-01" ] }, { "cite": "201 N. C., 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622747 ], "opinion_index": 0, "case_paths": [ "/nc/201/0090-01" ] }, { "cite": "209 N. C., 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221607 ], "opinion_index": 0, "case_paths": [ "/nc/209/0088-01" ] }, { "cite": "208 N. C., 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602666 ], "opinion_index": 0, "case_paths": [ "/nc/208/0267-01" ] }, { "cite": "207 N. C., 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626262 ], "opinion_index": 0, "case_paths": [ "/nc/207/0408-01" ] }, { "cite": "204 N. C., 521", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621534 ], "opinion_index": 0, "case_paths": [ "/nc/204/0521-01" ] }, { "cite": "204 N. C., 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617273 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/204/0309-01" ] }, { "cite": "191 N. C., 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628969 ], "opinion_index": 0, "case_paths": [ "/nc/191/0323-01" ] }, { "cite": "168 N. C., 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662047 ], "pin_cites": [ { "page": "p. 635" } ], "opinion_index": 0, "case_paths": [ "/nc/168/0632-01" ] }, { "cite": "214 N. C., 794", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8633037 ], "opinion_index": 0, "case_paths": [ "/nc/214/0794-01" ] } ], "analysis": { "cardinality": 1176, "char_count": 31385, "ocr_confidence": 0.482, "pagerank": { "raw": 2.7022671176444383e-07, "percentile": 0.8285730171913498 }, "sha256": "f708758745a0233234a443127d82d364b2df06473ed641e4186b577712eebb81", "simhash": "1:006388fc7f9f744d", "word_count": 5556 }, "last_updated": "2023-07-14T19:22:12.547739+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BETTY JEAN SMITH, by Her Next Friend, P. K. SMITH, v. JIM KAPPAS, Trading and Doing Business Under the Style and Firm Name of JIM\u2019S LUNCH, and THE STRAUS COMPANY, INC." ], "opinions": [ { "text": "ClaRksON, J.\nAt the close of plaintiff\u2019s 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.\nIt is well settled that on motion of nonsuit the evidence which makes for plaintiff\u2019s 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.\nIn 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.\nIn 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: \u2018The 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 \u201cconfided to an agent employed to transact the business which is given him to do,\u201d 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\u2019s Dept. Store v. Ins. Co., 208 N. C., 267 (271); Grubb v. Motor Co., 209 N. C., 88.\u201d 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).\nWhere 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.\nThe evidence was to the effect that in the contract between Jim Kappas (Jim\u2019s Lunch) and the defendant, Straus Company, Inc., is the following: \"Above equipment delivered and installed at Jim\u2019s Lunch, Greensboro, N. C.\u201d In Webster\u2019s Dictionary, \u201cinstalled\u201d is defined as follows: \u201cTo set or fix, as a lighting system, for use or service.\u201d Before the new equipment could be \u201cinstalled,\u201d 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 \u201cHe was installing fixtures, tbe stuff.\u201d \u201cThey 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.\u201d 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.\nIn In re Hinton, 180 N. C., 206 (213), Walker, J., said: \u201cEvidence 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.\u201d In York v. York, 212 N. C., 695 (702), tbe above is quoted and it is there said: \u201cTbe 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).\u201d\nJohn 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.\nIn Realty Co. v. Rumbough, 172 N. C., 741 (748-9), quoting from 1 Mecbem on Agency, sec. 261, p. 185, it is written: \u201c '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,\u2019 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.\u2019 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.\u201d\nIn Hunsucker v. Corbitt, 187 N. C., 496 (503), quoting Lockhart\u2019s Handbook on Evidence, sec. 154, and citing a wealth of authorities, we find: \u201c '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\u2019s admissions will be received.\u2019 \u201d\nIt 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.\nThe defendant contends that \u201cThe court erred in permitting a voluntary nonsuit as to the defendant, Jim Kappas, before the close of plaintiff\u2019s evidence; in overruling appellant\u2019s 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.\u201d\nThe plaintiff sued Kappas and the Straus Company, Inc., as joint tort-feasors. The complaint, Article 13, alleges: \u201cThat 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.\u201d In the answer of Straus Company, Inc., is the following: \u201cThat the allegations of Article 13 of the complaint are denied.\u201d\nThe amendment to answer of defendant Straus Company, Inc., alleges: \u201cThat 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\u2019s 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\u2019s 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.\u201d\nIn Bargeon v. Transportation Co., 196 N. C., 776 (777), is the following : \u201cCan 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.\u201d See Montgomery v. Blades, 217 N. C., 654.\nIn Perry v. Sykes, 215 N. C., 39 (43), we find: \u201cThe defendant does not contend that, ordinarily, a nonsuit cannot be had at the close of plaintiff\u2019s 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\u2019s 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.\u201d\nIn the present case we think the voluntary nonsuit was improperly granted. In the Perry case, sufra, \u201cthe answer made no demand for affirmative relief.\u201d 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: \u201cIn 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 j\u00fadgment, 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.\u201d\nIn Mangum v. R. R., 210 N. C., 134 (137), it is said: \u201cIn 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.\u201d Freeman v. Thompson, 216 N. C., 484.\nIt goes without saying that at the close of plaintiff\u2019s 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.\nThe painstaking and careful judge in the court below had no direct authority from this Court to guide him in the procedure under this statute. \u00a5e 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.\nFor the reasons given, there must be a\nNew trial.", "type": "majority", "author": "ClaRksON, J." } ], "attorneys": [ "O. W. Duke and H. D. Kuykendall, Sr., for plaintiff.", "B. M. Robinson for defendant, Straus Company, Inc." ], "corrections": "", "head_matter": "BETTY JEAN SMITH, by Her Next Friend, P. K. SMITH, v. JIM KAPPAS, Trading and Doing Business Under the Style and Firm Name of JIM\u2019S LUNCH, and THE STRAUS COMPANY, INC.\n(Filed 8 January, 1941.)\n1. Trial \u00a7 22b\u2014\nUpon motion to nonsuit, the evidence tending to support plaintiff\u2019s cause of action is to be considered in the light most favorable to her, and she is entitled to every reasonable intendment thereon and every reasonable inference therefrom. C. S., 567.\n3.Principal and Agent \u00a7 10a\u2014\nThe principal is liable to a third person injured by the negligence of the agent while the agent is engaged in the performance of duties actually conferred on him under express authority, or while performing acts usual or incidental to the proper performance of the duties actually conferred, which are within the agent\u2019s implied authority.\n3. Same \u2014 Evidence held for jury on question of whether negligent injury was inflicted by agent while acting within express or implied authority.\nPlaintiff\u2019s evidence tended to show that defendant cafe proprietor ordered new fixtures from defendant equipment company, that the equipment company contracted to install the new fixtures, that in order to install the new fixtures the old fixtures had to be removed, that in the performance of the contract the old fixtures and debris were piled on the sidewalk, that an old counter which was placed on top of this pile fell over as plaintiff was passing, and hit and injured plaintiff\u2019s foot, that the mechanic for the equipment company who installed the new fixtures paid the laborers who actually took out the old fixtures and piled them on the sidewalk. Held: The evidence is sufficient to be submitted to the jury on the question of whether the negligent acts resulting in the injury in suit occurred while the agent of the equipment company iyas acting within the scope of his authority, express or implied.\n4. Principal and Agent \u00a7 7: Evidence \u00a7 57\u2014\nWhere a witness points out a person in the courtroom and identifies him as defendant\u2019s agent, the failure of the alleged agent to testify in contradiction is a. circumstance to be considered by the jury, since a party\u2019s failure to disprove a charge by testimony within his control is some evidence that he cannot refute the charge.\n5. Principal and Agent \u00a7 7\u2014\nA business card with the name of a certain person thereon as agent of the defendant company is some evidence that the person named was defendant\u2019s agent, and although it is not competent unless evidence of agency aliunde is offered, the order of proof is largely in the discretion of the trial court.\n6. Same\u2014\nA wide latitude is allowed in proving the fact of agency and, as a general rule, any evidence logically tending to establish, the fact in issue is competent.\n7. Torts \u00a7 6: Trial \u00a7 25 \u2014 Upon defendant\u2019s demand of contribution against codefendant, plaintiff may not take voluntary nonsuit as to codefendant.\nPlaintiff sued defendants as joint tort-feasors. Appealing defendant in its amended answer denied negligence but also alleged that if appealing defendant were negligent, its negligence concurred with the negligence of its eodefendant, and asked for such relief against its codefendant as it was entitled to under C. S., 618. Held: It was error for the court, over appealing defendant\u2019s objection, to permit plaintiff to take a voluntary nonsuit as to the eodefendant before the close of plaintiff\u2019s evidence, since under the pleadings, appealing defendant requested affirmative relief against its eodefendant and is entitled to hold the codefendant as a party under the statute.\nAppeal by defendant Straus Company, Inc., from Rousseau, J., and a jury, at 18 March, 1940, Civil Term, of Guileobd.\nNew trial.\nThis is an action for actionable negligence, brought by plaintiff, by her next friend, against defendants, alleging damages. The defendants denied negligence.\nThe evidence was to the effect that Betty Jean Smith, the plaintiff, a child 3 years old, was seriously and permanently injured on 18 April, 1939, in the city of Greensboro.\nHenry Burke testified, in part: \u201cBetween 3 and 4 o\u2019clock on that day I was traveling east along Vest Edwards\u2019 Place on the north side of Edwards\u2019 Place. At that time I saw Betty Jean Smith. She was with some lady and they were traveling on the west or north sidewalk of Edwards\u2019 Place. Just before or about the time I saw the child and the lady with her I saw an old lunch counter brought out of Jim\u2019s Lunch. I would say it was approximately 15 or 20 feet long. I could not say how tall it was but I can show you (illustrating). About that high. I don\u2019t know how many feet that is. I would say around 5 or 6 feet high. The counter was placed between the two doors on Edwards\u2019 Place (indicating). It was placed right in here. It was sitting longways just like it would in a place of business. I don\u2019t recall what kind of base or bottom the counter had. I was walking along the plate glass window there when they brought it out and I stepped aside for them to get it out. It was brought out by a colored fellow and a white fellow. I know the colored fellow. His name was John Sellars. I did not know the white fellow. The colored fellow came out of the building first with the counter. About the time they set the counter up Betty Jean and the lady passed Bob\u2019s Shoe Shine Stand just back west of that. There is a hotel entrance between this place and Bob\u2019s Place. Just as the child got about middleways of the counter with the lady, the counter tilted over and fell, strileing her foot. I stood there and looked. The child hollered and screamed. Her left foot was struck by the counter. I was going west towards Greene Street and they were going east. When I passed the counter it was just sitting there. It was sitting upright. The top part was where it was supposed to be, just like it was sitting-in the lunchroom, and that was sitting against the side of the building. (The Court) Q. You mean just like that table as if it would have been in the lunchroom? Ans.: Yes, sir. I would not say the counter had been placed on the walk over a minute at the time the child passed the counter. I did not know this child prior to that time. . . . After this counter that I testified about this morning was placed out on the sidewalk, it was not out of my sight. No one other than the persons placing the counter there touched the counter. The weather on that day was very windy. I saw1 the counter fall.\u201d\nJ. O. May testified, in part: \u201cI am an electrical contractor. I was in Jim\u2019s Lunch on the 18th day of April, 1939, at the time the child was alleged to have been hurt, I think some time between 2 and 3 o\u2019clock. Prior to this time I had been doing some work for Jim\u2019s Lunch. They were taking out equipment. The equipment was being taken out and taken loose from the wall and I sat down there and was sitting there watching them and I saw them, remove the old equipment and pub up the new. I saw Jim there with a mop, mopping the floor, and I saw a fellow with brown clothes on. Q. What did you hear him say ? Ans.: I heard him tell a Negro and a white man to move the counter out, take it out on the sidewalk, that hurt this child. ... I saw the counters and equipment taken out back up by the side of the house. I did not see the child hurt. Q. After you went out there where did you see it? Ans.: I said, I saw it laying down on the sidewalk where it had fallen there.\u201d\nFrank Hivett testified, in part: \u201cI know where Jim\u2019s Lunch is located. 1 was there on the afternoon of the 18th of April, 1939, around 2 o\u2019clock or a little after 2 o\u2019clock. I was in the building and on the outside too. There was moving and transferring and putting up new fixtures, doing wiring and different things, you know, changing the fixtures in there. On that occasion I saw an old counter there being-moved. I say it was about 12 feet long, maybe longer, and the counterpart was not but around 30 or 36 inches high. It was moved out on the sidewalk and placed two doors on the south side of the building. There was several pieces out there \u2014 you know, it was just throwed up \u2014 it looked like to me in moving they bad just picked it up and throwed it on top of eacb other. I reckon the pile was about six feet high or something like that and about half, maybe over half, of the sidewalk there was taken up by it. I saw something happen to the counter after this stuff was placed out there. I saw it \u2014 I was standing in the front of the building looking kind of like this (illustrating) out through the glass and I saw it had done started. I could see about that far or maybe a little bit further, and I could see the counter going over, falling south. I did not see whether or not it hit anyone at that time.\u201d\nJ. G. Caldwell signed the contract between Straus Company, Inc., and Jim Kappas.\nC. C. Eobinson, police officer of the city of Greensboro, testified that the sidewalk along the side of Jim\u2019s Lunch is 6 or 7 feet wide; that three-fourths of the sidewalk was taken up by the equipment he saw there; that he saw a man there talking to the fellows moving the fixtures. There were both old and new equipment. It was on the north side of West Edwards\u2019 Place, on the sidewalk.\nEd Leigh testified, in part: \u201cI am a carpenter and I was working at that trade on the 18th day of April, 1939, at Jim\u2019s Lunch on the northwest corner of the intersection of Edwards\u2019 Place and Elm Street. . . . (Mr. Duke) I take the position that here is the man Caldwell that they admit is their agent. They admit that they are to install those fixtures. Now, here at the time\u2014 (The Court): I will admit it now but I may strike it out later. Q. Will you read this card, Mr. Leigh ? Ans.: (Eeading) \u2018The largest Equipment and Fixture House in the South. The Straus Company, Incorporated. 1004-6-8 East Cary Street, Eich-mond, Virginia. Manufacturers of Hotel \u2014 Eestaurant\u2014Institutional Equipment \u2014 Store Fixtures \u2014 Soda Fountains \u2014 China\u2014Glass\u2014Silver. John G. Caldwell, 2214 Circle Drive, Ealeigh, N. C. Phone 311.\u2019 (Mr. Duke) Q. Who directed you as to what work you were to do in that cafe? Ans.: The same gentleman I pointed out a while ago. (The Court) : You say the same gentleman you pointed out a while ago? Ans.: Yes, sir. (Mr. Duke) Q. Was that the same gentleman who handed you that cardf Ans.: Yes, sir. Q. What work did you do in Jim\u2019s Lunch, Mr. Leigh? Ans.: The back case or cabinet as you would call it, I suppose, I had to cut that plumb down from the top to the floor to allow the new section to come in. I cut it just according to his marking off ... Q. Who paid you for the work that you did there? Ans.: (Indicating) : This gentleman over there. Q. Is that the same man who gave you the cardf Ans. :Yes, sir.\u201d\nPlaintiff introduced a \u201cUniversal Conditional Sales Contract\u201d Order to defendant, Straus Company, Inc., dated 10 March, 1939, duly recorded in which is the following: \u201cPlease ship to Jim Kappas \u2014 Jim\u2019s Lunch, 348 S. Elm Street, City of Greensboro, State N. 0., tbe articles of personal property which are listed herein under the caption of \u2018Description of Equipment, Etc.\u2019 . . . Above equipment delivered and installed at Jim\u2019s Lunch, Greensboro, N. 0., with the exception of installation of gas equipment which will be done by others.\u201d\nPlaintiff offered in evidence, in the complaint against Straus Company, Inc., among other things, a portion of paragraph 2 of the Amended Complaint, reading as follows: \u201cThat on the 18th day of April, 1939, the said equipment purchased by the defendant Jim Kappas, for Jim\u2019s Lunch as aforesaid, was delivered by the defendant, The Straus Company, Inc., acting through its employees, servants and agents, to Jim\u2019s Lunch to be installed,\u201d and a portion of paragraph 1 of the Answer of The Straus Company, Inc., to the Amended Complaint, reading as follows: \u201cAnswering the allegations of paragraph 2 of said Amended Complaint wherein the same amends paragraph 7 of the original complaint, it is admitted that on the 18th day of April, 1939, the said equipment purchased by the defendant Jim .Kappas for Jim\u2019s Lunch as aforesaid was delivered by an employee of this defendant at Jim\u2019s Lunch to be installed.\u201d\nThe plaintiff also offered in evidence certified copy of an Ordinance of the city of Greensboro, North Carolina, marked \u201cExhibit P-1,\u201d which is as follows: \u201cChapter 50, Article 1, Sec. 1. \u2014 Not to Block Streets and Sidewalks. Section 1 \u2014 (a)\u2014\u2018No person, firm or corporation shall obstruct or block any street or sidewalk in the' city without a written permit therefor from the superintendent of the division of maintenance.\u2019 \u2018I hereby certify that the foregoing ordinance is a true and correct copy of said city ordinance as amended of the City of Greensboro, North Carolina, in force on April 18, 1939. This the 21st day of March, 1940. Elizabeth E. Wall, Deputy Clerk of City of Greensboro.\u2019 \u201d\nThe plaintiff took a voluntary nonsuit as to the defendant Jim Kappas, trading and doing business as Jim\u2019s Lunch. This was allowed by the court below.\nJim Kappas testified, in part: \u201cI own and operate Jim\u2019s Lunch. The Straus Company, Inc., installed that equipment in my place of business. I know what new equipment I purchased from The Straus Company, Inc. Q. Could the new fixtures be placed in there without removing the old ones? Ans.: No, they could not. Q. Who paid for labor for removing the old ones? Ans.: The Straus Company, Inc. Q. Did you have anything at all to do with the removal of the old fixtures and installing the new ones? Ans.: No, sir. Q. State whether or not you employed anyone to remove any of the old fixtures? Ans.: No, sir. Q. State whether or not, Mr. Kappas, you have paid anyone for any of that work? Ans.: No, sir. Q. Do you know who paid for the labor there in the removal of that equipment? (The Court) : If he knows of his own knowledge. Q. Do you know of your own knowledge who paid the labor? Ans.: No, I did not pay anything. Q. Do you know of your own knowledge who did pay? Ans.: I think that fellow (indicating). (The Court) Of your own knowledge? Ans.: (Continuing) that fellow \u2014 he is over there. Q. Do you Tcnow who he is over there? Ans.: Mr. Patterson, the mechanic for the Straus Company, Inc. Q. Who is he? Ans.: He is over there. Q. What does he do? Ans.: He ivas installing fixtures, the stuff. . . . (Cross-examination) Yes, an electrician disconnected it. I paid the electrician. I did not pay anyone except this one. I did not pay anyone else about that old equipment. The old equipment was mine. He took it out. . . . (Becross-examination) They had a colored fellotu and a carpenter there to move it. Here is the counter and the carpenter, he helped move it out.\u201d\nThe child, on the day of the injury, was with Mrs. Hazel Potter. A subpoena was issued for Mrs. Potter and \u201cAfter diligent search Mrs. Hazel Potter not to be found in Guilford County, Joe S. Phipps, Sheriff.\u201d\nThe defendant introduced no evidence. The issues submitted to the jury and their answers there, were as follows :\n\u201c1. Was the plaintiff injured by the negligence of agents or servants of the defendant, The Straus Company, Inc., while acting in the course and scope of their employment in delivering and installing the equipment described in the complaint ? Ans.: \u2018Yes.\u2019\n\u201c2. What damage, if any, is the plaintiff entitled to recover ? Ans.: \u2018$9,500.00.\u2019 \u201d\nThe defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.\nO. W. Duke and H. D. Kuykendall, Sr., for plaintiff.\nB. M. Robinson for defendant, Straus Company, Inc." }, "file_name": "0758-01", "first_page_order": 826, "last_page_order": 837 }