{ "id": 8570041, "name": "WILLIS E. BYRD v. NORTH STATE MOTOR LINES, INC.; ROWE'S TRUCKING COMPANY, INC.; and GEORGE THOMAS WOOLARD", "name_abbreviation": "Byrd v. North State Motor Lines, Inc.", "decision_date": "1965-01-15", "docket_number": "", "first_page": "369", "last_page": "376", "citations": [ { "type": "official", "cite": "263 N.C. 369" } ], "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": "129 S.E. 2d 107", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "258 N.C. 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561801 ], "opinion_index": 0, "case_paths": [ "/nc/258/0578-01" ] }, { "cite": "321 S.W. 2d 357", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10165502 ], "pin_cites": [ { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/sw2d/321/0357-01" ] }, { "cite": "113 F. Supp. 599", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4233022 ], "pin_cites": [ { "page": "603" } ], "opinion_index": 0, "case_paths": [ "/f-supp/113/0599-01" ] }, { "cite": "202 F. 2d 151", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1274881, 1274611, 1274989 ], "opinion_index": 0, "case_paths": [ "/f2d/202/0151-02", "/f2d/202/0151-01", "/f2d/202/0151-03" ] }, { "cite": "104 F. Supp. 245", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 332233 ], "opinion_index": 0, "case_paths": [ "/f-supp/104/0245-01" ] }, { "cite": "2 L. Ed. 2d 22", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "78 S. Ct. 38", "category": "reporters:federal", "reporter": "S. Ct.", "pin_cites": [ { "page": "40, 42" } ], "opinion_index": 0 }, { "cite": "355 U.S. 6", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6159852 ], "opinion_index": 0, "case_paths": [ "/us/355/0006-01" ] }, { "cite": "148 F. Supp. 399", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4278770 ], "opinion_index": 0, "case_paths": [ "/f-supp/148/0399-01" ] }, { "cite": "49 U.S.C.A. \u00a7 303", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(b)(6)" } ], "opinion_index": 0 }, { "cite": "96 S.E. 2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613205 ], "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/nc/245/0469-01" ] }, { "cite": "108 S.E. 2d 637", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "250 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "pin_cites": [ { "page": "312" } ], "opinion_index": 0 }, { "cite": "129 S.E. 2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "259 N.C. 16", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559112 ], "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0016-01" ] } ], "analysis": { "cardinality": 831, "char_count": 19287, "ocr_confidence": 0.582, "pagerank": { "raw": 2.3181068408277913e-07, "percentile": 0.7896134098937815 }, "sha256": "b325cc7011db3df2cf2c31d5e5d2dd77bbcfd7395a63a860e792fdf916506740", "simhash": "1:5621be18431bdeb9", "word_count": 3183 }, "last_updated": "2023-07-14T15:44:48.035422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WILLIS E. BYRD v. NORTH STATE MOTOR LINES, INC.; ROWE\u2019S TRUCKING COMPANY, INC.; and GEORGE THOMAS WOOLARD." ], "opinions": [ { "text": "Bobbitt, J.\nCareful consideration impels the conclusion that the evidence, when considered in .the light most favorable to plaintiff, is sufficient to require submission for jury determination of an issue as to the alleged actionable negligence of Woolard and that such evidence does not establish contributory negligence as a matter of law. The overruling of Woolard\u2019s motion for judgment of nonsuit indicates Judge Peel\u2019s view, as to this feature of the case, was in accord with ours. Having reached this conclusion, we deem it appropriate to refrain from further discussion of the evidence (relevant to said issues) presently before us. Weaver v. Bennett, 259 N.C. 16, 19, 129 S.E. 2d 610; Tucker v. Moorefield, 250 N.C. 310, 312, 108 S.E. 2d 637, and cases cited.\nSince a judgment of voluntary nonsuit was entered as to Woolard, the sufficiency of the evidence as to Woolard\u2019s actionable negligence is relevant on this appeal only if the evidence is also sufficient to require submission of an issue as to Woolard\u2019s alleged agency for North State Motor Lines, Inc., (North State) on the occasion of the collision.\nIt is established by the pleadings (1) that Woolard is a resident of Rocky Mount, N. C., and (2) that North State is a North Carolina corporation with principal office and place of business in Rocky Mount, N. C.\nIt was stipulated that \u201cNorth State Motor Lines, Inc. was a common carrier on the day in question and that on that date it was operating under a certificate issued by the Utilities Commission of the State of North Carolina and that it was also operating under a certificate issued by the Interstate Commerce Commission and further that it was hauling exempt commodities.\u201d\nThe principal evidence relevant to the agency issue consists of the testimony of Donald Bryan, Assistant General Manager of North State, examined by plaintiff at trial as an adverse witness. His testimony, summarized except when quoted, is set forth below.\nWoolard was the owner as well as the operator of the (1958 Chevrolet) tractor. North State \u201cobtained possession of that tractor under routine lease agreement from George Woolard.\u201d North State had leased the (1950 Trailmobile) trailer from Rowe Trucking Co., Inc., the owner.\nIn compliance with the requirement of the North Carolina Utilities Commission, the sign, \u201cNorth State Motor Lines, Inc., Rocky Mount, N. C.,\u201d and also the identifying sign, \u201cTruck No. 122,\u201d a vehicle number assigned for use by North State, were 'painted on the Woolard tractor.\nUnder the oral lease between North State and Woolard, the compensation Woolard received was paid to him as owner. Woolard was to receive as compensation \u201c65% of the gross revenue earned by his truck.\u201d However, North State was to deduct therefrom: (1) for gasoline and oil purchased on its credit; (2) for repairs made on its credit; (3) for tire repairs or purchases made on its credit; (4) for \u201cmoneys loaned to him for operating expenses at various times\u201d; and (5) for the amount of premiums paid \u201cto cover him under (its) Workmen\u2019s compensation policy.\u201d\nRowe Trucking Co., Inc., was paid a commission \u201cfrom the 35% portion that was retained by North State Motor Lines.\u201d \u201cA record was kept of what the trailer was used for and ... it was kept with Woolard\u2019s tractor that particular time as a unit, for bookkeeping purposes. Woolard pulled any trailer that North State Motor Lines provided.\u201d\nOn November 21, 1961, North State dispatched Woolard\u2019s tractor, pulling the 1950 Trailmobile trailer with a cargo of 27 hogsheads of tobacco, from Rocky Mount to said Port Terminal in Morehead City for export \u201cthrough the Port.\u201d The rate covering the shipment \u201cdidn\u2019t come through the Utilities Commission,\u201d but was in accordance with the rate that came to North State from the Tariff Bureau of the Motor Carriers Traffic Association, Inc. Woolard had nothing to do with determining the rate. The contract covering the shipment was between the shipper and North State. The rate was based on the trip from Rocky Mount to Morehead City without reference to a return trip from Morehead City to Rocky Mount.\nWhile North State did not designate the route Woolard would travel from Rocky Mount to Morehead City, Woolard \u201cwas to deliver (the shipment) ... to Morehead City as soon as possible barring any difficulties or taking time out to eat or stopping to fuel his truck . . .\u201d The only instruction given Woolard was to call North State after he had unloaded in Morehead City \u201cto determine if they had another truck load of freight to offer for him to transport, and if Mr. Woolard wanted another load he would get in touch with the company.\u201d Woolard was free to take or not take another load. North State, on this occasion, made unsuccessful efforts to find another load involving a trip from Morehead City to Rocky Mount, Wilmington, Norfolk or elsewhere.\nBryan testified: \u201cHe (Woolard) could have obtained a load of freight that was justifiable in his own mind to transport provided that particular load of freight was moved under North State Motor Lines bill of lading,\u201d and if he did so obtain a load of freight and did so move it under North State\u2019s bill of lading, the money would have been paid in gross to the office of North State.\nBryan testified Woolard was obligated to look out for and protect the trailer while it was in his possession. Under examination by plaintiff\u2019s counsel, Bryan testified he did not know whether Woolard was obligated to bring the trailer back to Rocky Mount. This was at variance with his further testimony when, under examination by North State\u2019s counsel, he said: \u201cMr. Woolard was under no obligation to bring the trailer back to Rocky Mount.\u201d\nIt is noted: Absent evidence of specific agreement with reference thereto, this Court cannot accept as authoritative Bryan\u2019s legal opinions as to whether Woolard was obligated to bring the trailer back to Rocky Mount or as to the extent Woolard was obligated to comply with North State\u2019s directives.\nNorth State contends plaintiff\u2019s evidence is insufficient to require submission of an issue as to agency. It contends Bryan\u2019s testimony establishes that Woolard was an independent contractor rather than an agent.\n\u201cIt is now established in this jurisdiction that an interstate carrier, which exercises its franchise rights by transporting its freight in leased equipment under leases such as that here involved, is liable in damages for injuries to third parties caused by the negligent operation of such equipment in the prosecution of such carrier\u2019s business.\u201d McGill v. Freight, 245 N.C. 469, 473, 96 S.E. 2d 438, and cases cited.\nNothing in the record indicates either intrastate or interstate franchise rights had been granted to Woolard. Whether Woolard was free to do so or not, there was no evidence he used his tractor to transport commodities for any person, firm or corporation other than North State. North State\u2019s name and its identifying truck number were painted on Woolard\u2019s tractor. It may be inferred from the facts in evidence that the relationship between North State and Woolard was a continuing relationship, albeit terminable at will, and that Woolard\u2019s owner-operated tractor was regularly used in pulling North State (owned or leased) trailers as an integral part of the prosecution of North State\u2019s business as a common carrier.\nNorth State contends Woolard, on November 21, 1961, was not exercising North State\u2019s interstate or intrastate franchise rights as a common carrier.\nNorth State contends no interstate franchise was required because the cargo consisted wholly of tobacco, an exempt (agricultural) product. Neither brief cites statute or decision bearing upon this subject. As pertinent to this subject, reference is made to the following: 49 U.S.C.A. \u00a7 303(b)(6); Frozen Food Express v. United States, 148 F. Supp. 399 (S.D. Tex.) aff\u2019d sub nom. Akron, Canton & Youngstown R. R. v. Frozen Food Express, 355 U.S. 6, 78 S. Ct. 38, 40, 42, 2 L. Ed. 2d 22; Interstate Commerce Commission v. Yeary Transfer Co., 104 F. Supp. 245 (E.D. Ky.), aff\u2019d 202 F. 2d 151 (6 Cir.); Interstate Commerce Com\u2019n v. Allen E. Kroblin, Inc., 113 F. Supp. 599, 603 (N.D. Ia.), and cases cited; Strickland Transportation Co. v. Brown Express, 321 S.W. 2d 357, 360 (Tex. Civ. App.). For present purposes, we accept North State\u2019s contention that the shipment of November 21, 1961, was exempt from the provisions of the Interstate Commerce Act.\nNorth State contends no intrastate franchise was required because the cargo was transported from Rocky Mount to the Port Terminal in Morehead City for shipment to an overseas destination. Assuming, for present purposes, the sufficiency of the evidence to show the shipment was subject to the power of Congress \u201c(t)o regulate commerce with foreign nations,\u201d U. S. Constitution, Article I, \u00a7 8, if, as North State contends, the cargo consisted wholly of an exempt commodity, Congress has disavowed any intent to regulate such shipment.\n\u201cIntrastate commerce,\u201d as defined in G.S. 62-121.7 (8), \u201cincludes all transportation of property by motor vehicles within the State for compensation in interstate or foreign commerce which has been exempted from regulation under the Interstate Commerce Act.\u201d We find nothing in G.S. 62-121.8, captioned, \u201cExemption from regulations,\u201d that would exempt the shipment of November 21, 1961, from the provision of the North Carolina Truck Act (G.S. Chapter 62, Article 6B). G.S. 62-121.15(a) provides, with exceptions not applicable here, that no person shall engage in the transportation of property in \u201cintrastate commerce\u201d until and unless such person shall have applied to and obtained from the North Carolina Utilities Commission a certificate or permit authorizing such operations.\nIf Woolard, when transporting the cargo of tobacco on November 21, 1961, was not acting under authority of North State\u2019s interstate franchise rights, it seems clear he was acting under authority of North State\u2019s intrastate franchise rights. If so, the same considerations of public policy on which the legal principles stated in McGill v. Freight, supra, and cases cited therein, are based would apply; and it is our opinion, and we so decide, that an intrastate carrier, which exercises its franchise rights by transporting its freight in leased equipment under a lease such as that here involved, is liable in damages for injuries to third parties caused by the negligent operation of such equipment in the prosecution of such carrier\u2019s business.\nTrue, the collision occurred after the cargo of tobacco had been unloaded. However, we are of opinion, and so decide, that the liability of North State for Woolard\u2019s operation of the leased equipment continued (at least) during the time it was on the Port Terminal premises.\nApart from the foregoing, the evidence was sufficient for submission to the jury as to the alleged agency of Woolard on legal principles stated in Cooper v. Publishing Co., 258 N.C. 578, 129 S.E. 2d 107, and cases cited therein. The evidential matters set forth above, without repetition, indicate the factors (indicia) tending to support the view that Woolard was acting as agent of North State.\nFor the reasons stated, the judgment of involuntary nonsuit as to North State is reversed. Since decision is based on the admitted evidence, it is unnecessary to consider whether the court erred in the exclusion of proffered testimony.\nReversed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Wheatly & Bennett for plaintiff appellant.", "Fields & Cooper and Dupree, Weaver, Horton & Cockman for North State Motor Lines, Inc., defendant appellee." ], "corrections": "", "head_matter": "WILLIS E. BYRD v. NORTH STATE MOTOR LINES, INC.; ROWE\u2019S TRUCKING COMPANY, INC.; and GEORGE THOMAS WOOLARD.\n(Filed 15 January, 1965.)\n1. Automobiles \u00a7 41c\u2014\nEvidence that defendant\u2019s tractor-trailer, traveling east on a street between warehouses at a port, struck the \u201ccounter weight\u201d of a fork lift which was unloading a tractor-trailer on the north side of the street, resulting in the injury in suit, held, sufficient to be submitted to the jury on the issue of negligence.\n2. Appeal and Error \u00a7 1\u2014\nWhere judgment of nonsuit is reversed, the Supreme Court will refrain from discussing the evidence except to the extent necessary, to explain the conclusion reached.\n3. Automobiles \u00a7 54a\u2014\nA carrier will be held liable in damages for injuries to third persons caused by the negligent operation of a vehicle transporting goods under authority of its intrastate franchise by application of the same public policy which imposes liability on an interstate carrier for injuries resulting from the operation of a vehicle under its interstate franchise, notwithstanding the vehicle may be driven by the owner-lessor at the time of the accident.\n4. Same\u2014 If a carrier of agricultural products is exempt from Federal franchise, he is subject to State regulation.\nThe evidence tended to show that the owner of a tractor was operating the tractor and a trailer in transporting tobacco from a municipality in this State to a port in the State for shipment in foreign commerce, that defendant carrier had leased the equipment, and that the trailer had painted on its side the name of defendant carrier and the identifying number assigned to the trailer by the Utilities Commission. Held: If no interstate franchise was required because the freight consisted of agricultural products, then the shipment was not exempt from State regulation, and the transportation was under authority of the intrastate franchise rights, and defendant carrier is liable for injuries to third persons resulting from the negligent operation of the vehicle. G.S. 62-121.7(8).\n5. Same\u2014\nThe accident in suit occurred after the cargo had been unloaded at a warehouse and after the tractor-trailer had been turned around and was in the process of leaving the port terminal. Held: The liability of the carrier under his franchise continued at least during the time the vehicle was on the port terminal premises.\n6. Automobiles \u00a7 54f\u2014\nEvidence in this case held sufficient to be submitted to the jury on the issue of whether the owner-operator of the tractor-trailer in the shipment in intrastate commerce was the agent of the carrier under whose franchise authority the shipment was transported.\nAppeal by plaintiff from Peel, J.t March 16, 1964, Civil Session of CARTERET.\nPersonal injury action.\nPlaintiff was employed by the North Carolina State Ports Authority as operator of a tow-motor fork lift. On November 21, 1961, about 11:00 a.m., in Morehead City, N. C., on the Port Terminal premises of the Ports Authority, in the area between Warehouse #2 and Warehouse #4, there was a collision, between a tractor-trailer combination (T/T), operated by defendant Woolard, and the fork lift operated by plaintiff.\nThe stipulations and evidence establish or tend to establish the background facts narrated below.\nThe area between Warehouse #2 and Warehouse #4 is a paved east-west street. Warehouse #4 is north of and parallel with Warehouse #2. The distance from the outer edge of the loading platform (ramp) along the north side of Warehouse #2 to the outer edge of a similar ramp along the south side of Warehouse #4 is 52 feet and 2 inches. There is \u201ca drainage dip\u201d in the center of this street. Immediately west of said warehouses, said east-west street intersects with a north-south street. The width of the north-south street is 49 feet and 9 inches. West of said intersection, and in line with Warehouse #2 and Warehouse #4, respectively, are Warehouse #3 and Warehouse #5.\nThe T/T operated by Woolard was in a line of similar trucks headed west for unloading on the portion of the ramp along the north side of Warehouse #2 opposite Door #16. In its turn, it pulled up \u201cwithin about two inches of\u201d the ramp. This T/T combination is 49 feet long and about 8 feet wide. It includes \u201ca 37-foot platform trailer.\u201d \u201cThe West edge of Door #16 is 84 feet 7 inches from the West edge of Warehouse #2.\u201d The load on the trailer consisted of 27 hogsheads of tobacco. Each of nine rows consisted of two hogsheads on the bed of the trailer and a third hogshead above and between them. When the T/T first stopped, the three hogsheads constituting the row at the rear of the trailer were opposite Door #16. The top hogshead was pushed onto the ramp by the projecting prongs or \u201cshoe\u201d of the fork lift and thereafter the lower two hogsheads were pushed onto the ramp by manual labor. After the removal of each row, the T/T backed the short distance necessary to bring the next row of hogsheads into position opposite Door #16. Each time the T/T backed, \u201c(t)he fork lift would back up from one foot to two feet to clear the truck it was unloading.\u201d\nThe overall length of the fork lift is 14 feet, 9 inches. It is four feet wide. It weighs between seven and eight thousand pounds. The prongs or \u201cshoe\u201d used in pushing hogsheads from a trailer onto the ramp are at the front of the fork lift. There is a \u201ccounter-balance\u201d on the back of the fork lift, \u201ca heavy piece of steel ... to keep the front end from tipping up when unloading is being done.\u201d \u201cThe operator sits close to the rear over the motor . . .\u201d\nAfter unloading, the T/T operated by Woolard pulled away from said ramp and proceeded west to said intersection. There, after first turning right (north) into the intersecting north-south street and then backing therein to a point south of the east-west street, Woolard proceeded forward and made a right turn into the east-west street. While Woolard was proceeding as indicated, another truck had pulled into position for unloading at Door #16 in like manner and plaintiff, operating the fork lift, had pushed off \u201ctwo tiers of hogsheads.\u201d\nThe T/T operated by Woolard was proceeding east in said east-west street (between Warehouse #2 and Warehouse #4) when the tool box under the right side of the bed of the trailer and approximately midway the length thereof, and thereafter the right tandem wheels of the trailer, collided with the right portion of the \u201ccounter-balance\u201d of the fork lift. On account of said collision, plaintiff was thrown from said fork lift and seriously injured.\nEvidential facts pertinent to the agency issue will be set forth in the opinion.\nPlaintiff alleged the collision and his injuries were caused by the negligence of Woolard while acting as agent for the corporate defendants. Defendants, by joint answer, denied Woolard was negligent; denied Woolard was acting as agent for the corporate defendants; and alleged, as a conditional further defense, the contributory negligence of plaintiff. Other further defenses alleged by defendants are not pertinent to decision on this appeal.\nWhen the case was called for trial, plaintiff announced he would take a voluntary nonsuit as to Rowe\u2019s Trucking Company, Inc. At the conclusion of plaintiff\u2019s evidence, Woolard and North State Motor Lines, Inc., moved for judgment (s) of involuntary nonsuit. Woolard\u2019s motion was overruled. The motion of North State Motor Lines, Inc., was allowed. Thereupon, plaintiff announced he would take a voluntary nonsuit as to Woolard. Judgment(s) of voluntary nonsuit as to Wool-ard and as to Rowe\u2019s Trucking Company, Inc., was entered.\nJudgment of involuntary nonsuit was entered as to North State Motor Lines, Inc. Plaintiff excepted and appealed.\nWheatly & Bennett for plaintiff appellant.\nFields & Cooper and Dupree, Weaver, Horton & Cockman for North State Motor Lines, Inc., defendant appellee." }, "file_name": "0369-01", "first_page_order": 407, "last_page_order": 414 }