Smith v. . KappasSmith v. . Kappas
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- Before:
- Clarkson
This is an action for actionable negligence, brought by plaintiff, by her next friend, against defendants, alleging damages. The defendants denied negligence.
The 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.
Henry Burke testified, in part: “Between 3 and 4 o‘clock on that day I was traveling east along West Edwards’ Place on the north side of Edwards’ Place. At that time I saw Betty Jean Smith. She was with some lady and they werе traveling on the west or north sidewalk of Edwards’ 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‘s 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‘t 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’ Place (indicating). It was placed right in here. It was sitting longways just like it would in a place of business. I don‘t 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
J. O. May testified, in part: “I am an electrical contractor. I was in Jim‘s 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‘clock. Prior to this time I had been doing some work for Jim‘s 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 put 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 sаw 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.”
Frank Kivett testified, in part: “I know where Jim‘s Lunch is located. I was there on the afternoon of the 18th of April, 1939, around 2 o‘clock or a little after 2 o‘clock. 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 counter part 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 — you know, it was just throwed up — it
J. G. Caldwell signed the contract between Straus Company, Inc., and Jim Kappas.
C. C. Robinson, police officer of the city of Greensboro, testified that the sidewаlk along the side of Jim‘s 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’ Place, on the sidewalk.
Ed Leigh testified, in part: “I am a carpenter and I was working at that trade on the 18th day of April, 1939, at Jim‘s Lunch on the northwest corner of the intersection of Edwards’ 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 — (The Court): I will admit it now but I may strike it out later. Q. Will you read this card, Mr. Leigh? Ans.: (Reading) `The largest Equipment and Fixture House in the South. The Straus Company, Incorporated. 1004-6-8 East Cary Street, Richmond, Virginia. Manufacturers of Hotel — Restaurant — Institutional Equipment — Store Fixtures — Soda Fountains — China — Glass — Silver. John G. Caldwell, 2214 Circle Drive, Raleigh, N.C. Phone 311.’ (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 card? Ans.: Yes, sir. Q. What work did you do in Jim‘s 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 card? Ans.: Yes, sir.”
Plaintiff introduced a “Universal Conditional Sales Contract” Order to dеfendant, Straus Company, Inc., dated 10 March, 1939, duly recorded in which is the following: “Please ship to Jim Kappas — Jim‘s Lunch,
Plaintiff 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: “That on the 18th day of April, 1939, the said equipment purchased by the defendant Jim Kappas, for Jim‘s Lunch as aforesaid, was delivered by the defendant, The Straus Company, Inc., acting through its employees, servants and agents, to Jim‘s Lunch to be installed,” and a portion of paragraph 1 of the Answer of The Straus Company, Inc., to the Amended Complaint, reading as follows: “Answering the allegations of paragraph 2 of sаid 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‘s Lunch as aforesaid was delivered by an employee of this defendant at Jim‘s Lunch to be installed.”
The plaintiff also offered in evidence certified copy of an Ordinance of the city of Greensboro, North Carolina, marked “Exhibit P-1,” which is as follows: “Chapter 50, Article 1, Sec. 1. — Not to Block Streets and Sidewalks. Section 1 — (a) — `No 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.’ `I 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 R. Wall, Deputy Clerk of City of Greensboro.‘”
The plaintiff took a voluntary nonsuit as to the defendant Jim Kappas, trading and doing business as Jim‘s Lunch. This was allowed by the court below.
Jim Kappas testified, in part: “I own and operate Jim‘s 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 child, on the day of the injury, was with Mrs. Hazel Potter. A subpoena was issued for Mrs. Potter and “After diligent search Mrs. Hazel Potter not to be found in Guilford County, Joe S. Phipps, Sheriff.”
The defendant introduced no evidence. The issues submitted to the jury and thеir answers there, were as follows:
“1. 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.: `Yes.’
“2. What damage, if any, is the plaintiff entitled to recover? Ans.: `$9,500.00.‘”
The defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be sеt forth in the opinion. At the close of plaintiff‘s evidence, the defendant, the Straus Company, Inc., made a motion in the court below for judgment as in case of nonsuit.
It is well settled that on motion of nonsuit the evidence which makes for plaintiff‘s 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 upоn the evidence, and every reasonable inference to be drawn therefrom.
In stating the 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.
In 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: `The general agent is one who is authorized to act for his principal in all matters cоncerning 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 “confided to an agent employed to transact the business which is given him to do,” 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); Dixon v. Realty Co., 204 N.C. 521; R. R. v. Lassiter Co., 207 N.C. 408; Belk‘s Dept. Store v. Ins. Co., 208 N.C. 267 (271); Grubb v. Motor Co., 209 N.C. 88.” 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).
Where 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 dоing he was acting within the scope of his agency. Wrought-Iron Range Co. v. Graham, 80 F. 474, 25 C.C.A., 570.
The evidence was to the effect that in the contract between Jim Kappas (Jim‘s Lunch) and the defendant, Straus Company, Inc., is the following: ”Above equipment delivered and installed at Jim‘s Lunch, Greensboro, N.C.” In Webster‘s Dictionary, “installed” is defined as follows: “To set or fix, as a lighting system, for use or service.” Before the new equipment could be “installed,” the old equipment had to be
In In re Hinton, 180 N.C. 206 (213), Walker, J., said: “Evidence of this kind was competent for the jury to consider, for when one can easily disprove a charge by testimony within his control, and which he can then produce, and fails to do it, it is some proof that he cannot refute the charge.” In York v. York, 212 N.C. 695 (702), the above is quoted and it is there said: “The rule of the Hinton case, supra, has been repeatеdly approved and followed in recent cases decided by this 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).”
John G. Caldwell signed the contract between Straus Company, Inc., and Kappas. He was in the court and pointed out by Ed Leigh as the man who gave him employment and paid him for taking down some of the old fixtures to put in the new. We think the card competent to identify the man who employed him and whose name was on the card. The advertising portion is not important. There was no request that it be limited.
In Realty Co. v. Rumbough, 172 N.C. 741 (748-9), quoting from 1 Mechem on Agency, sec. 261, p. 185, it is written: “`The existence of agency is a fact, and, like other facts, may be proved by any evidence traceable to the alleged principal and having a legal tendency to establish it. Informal writings of the alleged principal, his letters, telegrams, book entries, and the like are clearly admissible. But it need not be proved by written instruments (except in the cases already mentioned) or by express or formal oral language. The agency may be shown by cоnduct, by the relations and situation of the parties, by acts and declarations, by matters of omission as well as of commission, and, generally, by any fact or circumstances with which the alleged principal can be connected and having a legitimate tendency to establish that the person in question was his agent for the performance of the act in controversy,’
In Hunsucker v. Corbitt, 187 N.C. 496 (503), quoting Lockhart‘s Handbook on Evidence, sec. 154, and citing a wealth of authorities, we find: ” `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 gestae, but such admissions are not admissible to prove agency; the agency must be shown aliunde before the agent‘s admissions will be received.‘”
It was in the sound discretion of the court below to allow evidence of admissions of facts and circumstances to show agеncy before the fact of the agency was established aliunde.
The defendant contends that “The court erred in permitting a voluntary nonsuit as to the defendant, Jim Kappas, before the close of plaintiff‘s evidence; in overruling appellant‘s 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 nonsuit as to said Kappas; in thеreafter 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.”
The plaintiff sued Kappas and the Straus Company, Inc., as joint tort-feasors. The complaint, Article 13, alleges: “That 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.” In the answer of
The amendment to answer of defendant Straus Company, Inc., alleges: “That 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‘s 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 аnd firm name of Jim‘s 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.”
In Bargeon v. Transportation Co., 196 N.C. 776 (777), is the following: “Can 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.” See Montgomery v. Blades, 217 N.C. 654.
In Perry v. Sykes, 215 N.C. 39 (43), we find: “The defendant does not contend that, ordinarily, a nonsuit cannot be had аt the close of plaintiff‘s evidence, when it is sufficient 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
In the present case we think the voluntary nonsuit was improperly granted. In the Perry case, supra, “the answer made no demand for affirmative relief.” 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 dеfendant under
In Mangum v. R. R., 210 N.C. 134 (137), it is said: “In 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 nеgligence 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.” Freeman v. Thompson, 216 N.C. 484.
It goes without saying that at the close of plaintiff‘s evidence or at the close of all the evidence, if there was no sufficient evidence to be submitted
The painstaking and careful judge in the court below had no direct authority from this Court to guide him in the procedure under this statute. We 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.
For the reasons given, there