Byrd v. North State Motor Lines, Inc.

*372 Bobbitt, J. Careful 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’s motion for judgment of nonsuit indicates Judge Peel’s 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. Since a judgment of voluntary nonsuit was entered as to Woolard, the sufficiency of the evidence as to Woolard’s actionable negligence is relevant on this appeal only if the evidence is also sufficient to require submission of an issue as to Woolard’s alleged agency for North State Motor Lines, Inc., (North State) on the occasion of the collision. It 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. It was stipulated that “North 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.” The 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. Woolard was the owner as well as the operator of the (1958 Chevrolet) tractor. North State “obtained possession of that tractor under routine lease agreement from George Woolard.” North State had leased the (1950 Trailmobile) trailer from Rowe Trucking Co., Inc., the owner. In compliance with the requirement of the North Carolina Utilities Commission, the sign, “North State Motor Lines, Inc., Rocky Mount, N. C.,” and also the identifying sign, “Truck No. 122,” a vehicle number assigned for use by North State, were 'painted on the Woolard tractor. Under the oral lease between North State and Woolard, the compensation Woolard received was paid to him as owner. Woolard was to re *373 ceive as compensation “65% of the gross revenue earned by his truck.” 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 “moneys loaned to him for operating expenses at various times”; and (5) for the amount of premiums paid “to cover him under (its) Workmen’s compensation policy.” Rowe Trucking Co., Inc., was paid a commission “from the 35% portion that was retained by North State Motor Lines.” “A record was kept of what the trailer was used for and ... it was kept with Woolard’s tractor that particular time as a unit, for bookkeeping purposes. Woolard pulled any trailer that North State Motor Lines provided.” On November 21, 1961, North State dispatched Woolard’s 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 “through the Port.” The rate covering the shipment “didn’t come through the Utilities Commission,” 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. While North State did not designate the route Woolard would travel from Rocky Mount to Morehead City, Woolard “was 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 . . .” The only instruction given Woolard was to call North State after he had unloaded in Morehead City “to 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.” 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. Bryan testified: “He (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,” and if he did so obtain a load of freight and did so move it under North State’s bill of lading, the money would have been paid in gross to the office of North State. *374 Bryan testified Woolard was obligated to look out for and protect the trailer while it was in his possession. Under examination by plaintiff’s 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’s counsel, he said: “Mr. Woolard was under no obligation to bring the trailer back to Rocky Mount.” It is noted: Absent evidence of specific agreement with reference thereto, this Court cannot accept as authoritative Bryan’s 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’s directives. North State contends plaintiff’s evidence is insufficient to require submission of an issue as to agency. It contends Bryan’s testimony establishes that Woolard was an independent contractor rather than an agent. “It 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’s business.” McGill v. Freight, 245 N.C. 469, 473, 96 S.E. 2d 438, and cases cited. Nothing 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’s name and its identifying truck number were painted on Woolard’s 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’s owner-operated tractor was regularly used in pulling North State (owned or leased) trailers as an integral part of the prosecution of North State’s business as a common carrier. North State contends Woolard, on November 21, 1961, was not exercising North State’s interstate or intrastate franchise rights as a common carrier. North 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. § 303(b)(6); Frozen Food Express v. United States, 148 F. Supp. 399 (S.D. Tex.) aff’d sub nom. Akron, Canton & Youngstown R. *375 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’d 202 F. 2d 151 (6 Cir.); Interstate Commerce Com’n 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’s contention that the shipment of November 21, 1961, was exempt from the provisions of the Interstate Commerce Act. North 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 “(t)o regulate commerce with foreign nations,” U. S. Constitution, Article I, § 8, if, as North State contends, the cargo consisted wholly of an exempt commodity, Congress has disavowed any intent to regulate such shipment. “Intrastate commerce,” as defined in G.S. 62-121.7 (8), “includes 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.” We find nothing in G.S. 62-121.8, captioned, “Exemption from regulations,” 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 “intrastate commerce” until and unless such person shall have applied to and obtained from the North Carolina Utilities Commission a certificate or permit authorizing such operations. If Woolard, when transporting the cargo of tobacco on November 21, 1961, was not acting under authority of North State’s interstate franchise rights, it seems clear he was acting under authority of North State’s 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’s business. True, 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’s operation of the leased equipment con *376 tinued (at least) during the time it was on the Port Terminal premises. Apart 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. For 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. Reversed.