{ "id": 8626107, "name": "W. E. SISSON and A. A. PERRYMAN, JR., Partners Trading and Doing Business as TERMINAL CITY OIL COMPANY, v. S. S. ROYSTER, D. W. ROYSTER, H. R. ROYSTER, S. S. ROYSTER, JR., and D. W. ROYSTER, JR., Partners Trading as ROYSTER TRANSPORT CO.", "name_abbreviation": "Sisson v. Royster", "decision_date": "1947-12-10", "docket_number": "", "first_page": "298", "last_page": "301", "citations": [ { "type": "official", "cite": "228 N.C. 298" } ], "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": "225 N. C., 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605177 ], "opinion_index": 0, "case_paths": [ "/nc/225/0236-01" ] }, { "cite": "215 N. C., 719", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631756 ], "opinion_index": 0, "case_paths": [ "/nc/215/0719-01" ] }, { "cite": "118 S. E., 797", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "186 N. C., 56", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652709 ], "opinion_index": 0, "case_paths": [ "/nc/186/0056-01" ] }, { "cite": "327 U. S., 645", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 413818 ], "opinion_index": 0, "case_paths": [ "/us/327/0645-01" ] }, { "cite": "218 N. C., 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618743 ], "opinion_index": 0, "case_paths": [ "/nc/218/0320-01" ] } ], "analysis": { "cardinality": 487, "char_count": 9396, "ocr_confidence": 0.437, "pagerank": { "raw": 1.0873401050065135e-07, "percentile": 0.5644529854829374 }, "sha256": "89fb29fc923254e9c7ef64aa6803c658e772e3ca5447ee8aa407cf4ac3d80ed5", "simhash": "1:2ead3971fbdfcc77", "word_count": 1547 }, "last_updated": "2023-07-14T21:52:37.324265+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. E. SISSON and A. A. PERRYMAN, JR., Partners Trading and Doing Business as TERMINAL CITY OIL COMPANY, v. S. S. ROYSTER, D. W. ROYSTER, H. R. ROYSTER, S. S. ROYSTER, JR., and D. W. ROYSTER, JR., Partners Trading as ROYSTER TRANSPORT CO." ], "opinions": [ { "text": "DeviN, J.\nA collision of oil trucks on the highway near Maxton, North Carolina, resulted disastrously. Plaintiffs\u2019 truck and trailer were badly battered, and defendants\u2019 truck and trailer loaded with gasoline were set on fire, the truck destroyed, the contents consumed, and the driver burned to death. This occurred on the night of 19 April, 1946. On 26 April, following, plaintiffs entered suit against defendants for injury to their truck, and the defendants by answer set up their claim for damages against the plaintiffs by way of counterclaim, alleging negligence on the part of plaintiffs\u2019 driver. The evidence on the controverted questions of fact as to whose negligence caused the collision was submitted to the jury and decided in favor of the defendants.\nThe plaintiffs bring up with their appeal from this adverse result several assignments of error. They present the view that there was no competent evidence of negligence on the part of plaintiffs, and that their motion for judgment of nonsuit as to defendants\u2019 counterclaim should have been allowed. It appears from the record that plaintiffs interposed motion for nonsuit at the close of defendants\u2019 evidence and excepted to its denial, but later offered a witness in rebuttal without thereafter renewing their motion (Gr. S., 1-183). However, this omission was not harmful, as we have considered the question of the probative value of defendants\u2019 evidence and reached the conclusion that there was some evidence to support defendants\u2019 allegations of negligence on the part of the plaintiffs. Coach Co. v. Lee, 218 N. C., 320, 11 S. E. (2d), 341. True, the plaintiffs\u2019 witness Lockey testified the driver of defendants\u2019 truck drove his truck over the center line of the highway and into plaintiffs\u2019 t-ruck, and there was other evidence offered by plaintiffs tending to corroborate this view, but, on the other hand, the defendants offered the testimony of a witness wbo was driving another truck close behind defendants\u2019 truck, tending to show that defendants\u2019 truck remained on the north side of the center of the highway at all times, and that there was a trail of oil beginning north of the center of the highway and extending across the highway to a point underneath plaintiffs\u2019 truck, and evidence was offered as to the position of defendants\u2019 truck after the collision, and the location of fragments and marks on the surface of the road. The conflicting versions of what occurred and as to who was at fault in causing the collision presented a question for the jury. As was said in Lavender v. Kurn, 327 U. S., 645, \u201cBut where, as here, there is an evidentiary basis for the jury\u2019s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court\u2019s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.\u201d\nPlaintiffs also assign error in the ruling of the trial court in admitting in evidence, over objection, a letter written by D. ~W. Royster, one of defendants, to the plaintiffs, dated 25 April, 1946, in which it was stated that after investigating the wreck in which defendants\u2019 gasoline transport unit was destroyed and the driver killed, \u201cwe are convinced that this accident was due entirely to the negligence of your driver Lockey, and we are requesting that you arrange for immediate payment for all loss incurred in this wreck.\u201d There was no request that the scope of this evidence be restricted. It appeared that on the cross-examination of ~W. E. Sisson, one of the plaintiffs, he had been shown this letter and asked if he had received it, to which he replied that he recalled \u201creceiving a similar letter some two weeks after the end of this suit.\u201d It was admitted that the letter was received by plaintiffs 26 April. The plaintiffs contend this letter contained a self-serving declaration and was incompetent. Defendants\u2019 reply that it was competent as showing demand on the plaintiffs, and that immediately on its receipt, the same day, the plaintiffs instituted suit against defendants in New Hanover County where plaintiffs reside, and that defendants, residents of Cleveland County, were therefore compelled to set up their cause of action by way of counterclaim. The defendants also call attention to the testimony of defendant Royster, admitted without objection, that he had investigated the wreck immediately after it occurred, and that he had made a written demand on plaintiffs 25 April, forwarded it by registered mail, and produced the return receipt signed by plaintiffs. Defendants contend the letter was competent to explain or contradict the testimony of Mr. Sisson, and also to corroborate Mr. Royster, and that in either view it was competent.\nIn any event, we are unable to see how the plaintiffs were prejudiced by the admission of this letter. In the pleadings, read in the presence of the jury, was set forth defendants\u2019 allegation that the collision was caused solely by the negligence of plaintiffs\u2019 employee, and in the court\u2019s charge to the jury in stating the rival claims of the parties as pleaded it was stated that the defendants claimed plaintiffs\u2019 driver Lockey was driving in a negligent and careless manner which proximately caused the destruction by fire of defendants\u2019 property. Hence, the jury were fully aware that defendants\u2019 cross-action was bottomed on the claim that the collision was due entirely to the negligence of plaintiffs\u2019 driver, and that defendants were asking compensation for the loss. The letter added nothing to what had already been brought to their attention. If there was error in admitting the letter, which is not conceded, we cannot hold that plaintiffs were prejudiced thereby. Its admission was not of sufficient moment to make it appear that the jury was improperly influenced by it. It is a familiar rule in appellate procedure that the burden is on the appellant not only to show error, but also \u201cthat it is material and prejudicial amounting to the denial of some substantial right\u201d (Wilson v. Lumber Co., 186 N. C., 56, 118 S. E., 797; Collins v. Lamb, 215 N. C., 719, 2 S. E. (2d), 863), and \u201cthat a different result would have likely ensued.\u201d S. v. King, 225 N. C., 236, 34 S. E. (2d), 3.\n~W\"e have examined the other assignments of error brought up in plaintiffs\u2019 appeal and find them without substantial merit. No prejudicial error sufficient to warrant a new trial has been shown.\nNo error.", "type": "majority", "author": "DeviN, J." } ], "attorneys": [ "Stevens & Burgwin and J. Laurence Jones for plaintiffs, appellants.", "Garr & Carr and Poisson, Campbell \u25a0& Marshall for defendants, ap-pellees." ], "corrections": "", "head_matter": "W. E. SISSON and A. A. PERRYMAN, JR., Partners Trading and Doing Business as TERMINAL CITY OIL COMPANY, v. S. S. ROYSTER, D. W. ROYSTER, H. R. ROYSTER, S. S. ROYSTER, JR., and D. W. ROYSTER, JR., Partners Trading as ROYSTER TRANSPORT CO.\n(Filed 10 December, 1947.)\n1. Automobiles \u00a7 18h (2)\u2014\nPlaintiffs\u2019 truck and defendants\u2019 truck, traveling in opposite directions, collided on tbe highway. There was evidence on the part of each party in support of his contention that the truck of the other party was over the center'line of the highway when the collision occurred. Held: The conflicting evidence presents questions of fact for the jury, and the denial of plaintiffs\u2019 motion to nonsuit defendants\u2019 counterclaim was proper.\n2. Appeal and Error \u00a7 39e\u2014\nWhere defendants\u2019 contention that the collision forming the basis of the action was due to the negligence of the driver of plaintiffs\u2019 truck is presented to the jury in the pleadings, the testimony of one of defendants and the charge of the court, an exception to the admission in evidence of a letter written by the defendant which stated that the accident was the result of the negligence of plaintiffs\u2019 driver cannot be sustained on the ground that it was a self-serving declaration, since, even so, its admission could not have been prejudicial.\n3. Appeal and Error \u00a7 38\u2014\nThe burden is on appellant not only to show error but also that it was material and prejudicial.\nAppeal by plaintiffs from Williams, Jat April Term, 1947, of New HaNOver.\nNo error.\nThis was an action to recover damages for injury to plaintiffs\u2019 motor truck and trailer growing out of collision on the highway with defendants\u2019 truck and trailer. Both vehicles were being used in the transportation of gasoline, plaintiffs\u2019 unit being at the time empty and traveling east, and defendants\u2019 unit at the time loaded with gasoline and traveling west.\nPlaintiffs alleged that the collision and consequent injury to their truck and trailer was caused by the negligence of defendants\u2019 driver in the operation of defendants\u2019 truck. The defendants denied negligence on part of their driver, and set up a counterclaim for injury to defendants\u2019 truck and cargo, alleging that the collision and resultant injury to defendants\u2019 property was caused solely by the negligence of plaintiffs\u2019 driver.\nAppropriate issues were submitted to the jury who for their verdict found that the plaintiffs\u2019 property was not damaged by negligence of the defendants, and on issues addressed to defendants\u2019 counterclaim the jury found defendants\u2019 property was damaged by the negligence of the plaintiffs and awarded compensation therefor against the plaintiffs.\nFrom judgment on the verdict, plaintiffs appealed.\nStevens & Burgwin and J. Laurence Jones for plaintiffs, appellants.\nGarr & Carr and Poisson, Campbell \u25a0& Marshall for defendants, ap-pellees." }, "file_name": "0298-01", "first_page_order": 344, "last_page_order": 347 }