Gibbs v. . Russ

WiNBORNE, J. The question involved on this appeal is worded in the brief of the counsel for plaintiff in this manner: “Another nonsuit, of course; this time voluntary, but enforced by exclusion of essential testimony, to wit, that part of the evidence of defendant Russ contained in his examination by plaintiff before the clerk, which appears from the middle of page 2 to bottom of page 4 of the record; also the insurance policy.” It is contended that for the purpose of showing that the truck in question was owned jointly by defendants Russ and the Pulp Company this testimony and the policy were competent as evidence in the case. Even so, conceding that the purpose for which the testimony and policy were offered by plaintiff comes within the principle announced and applied in Davis v. Shipbuilding Co., 180 N. C., 74, 104 S. E., 82, in Rivenbark v. Oil Corp., 217 N. C., 592, 8 S. E. (2d), 919, and in Isley v. Winfrey, 221 N. C., 33, 18 S. E. (2d), 702, and referred to and discussed in Herndon v. Massey, 217 N. C., 610, 8 S. E. (2d), 914, we are of opinion that the error is harmless in that when the excluded evidence is considered with all other evidence admitted at the trial, plaintiff fails to make out a case for the jury. The burden is on the plaintiff as appellant, not only to show error but prejudicial error, Wilson v. Lumber Co., 186 N. C., 56, 118 S. E., 797; Collins v. Lamb, 215 N. C., 719, 2 S. E. (2d), 863; Tolley v. Creamery, Inc., 217 N. C., 255, 7 S. E. (2d), 502. Moreover, the present ease is distinguishable from those cases in which a new trial is ordered as in Morgan v. Benefit Society, 167 N. C., 262, 83 S. E., 479; Midgett v. Nelson, 212 N. C., 41, 192 S. E., 854; Ledwell v. Milling Co., 215 N. C., 371, 1 S. E. (2d), 841; Brown v. Montgomery Ward & Co., 217 N. C., 368, 8 S. E. (2d), 199; Caulder v. *352 Motor Sales, Inc., 221 N. C., 437, 20 S. E. (2d), 338; Webster v. Charlotte, 222 N. C., 321, 22 S. E. (2d), 900, and tbe line of cases bolding tbat where tbe only evidence to sustain tbe cause of action alleged by plaintiff is incompetent, but erroneously admitted, and an appeal is taken by tbe defendant for tbe refusal of judgment of nonsuit thereon, this Court will not overrule tbe trial court and grant tbe nonsuit. Tbe reason assigned for sucb bolding is tbat if tbe evidence bad been ruled out, as it should have been, tbe plaintiff may have substituted other competent evidence in its place to support bis cause of action. In tbe case in band, however, tbe evidence was rejected and tbe plaintiff then bad tbe opportunity to mend bis fences and offer other evidence if available. And in sucb event, tbe burden is on tbe plaintiff to offer such other evidence which will, with tbe rejected competent evidence, make out a case for tbe jury. Applying these principles to tbe case in band, tbe evidence admitted, together with tbe evidence rejected, taken in tbe light most favorable to plaintiff, shows, and all tbat it tends to show is tbat tbe truck jointly owned by defendants Euss and Pulp Company for tbe purpose of hauling pulpwood was at tbe time in question being operated by Euss with consent of tbe Pulp Company in hauling Irish potatoes for one Ben Aycock, a third person. There is no evidence tbat tbe Pulp Company bad any interest in tbe hauling of tbe Irish potatoes or tbat it was receiving any benefit from it or tbat tbe truck was being operated in its behalf. Thus with respect to tbe operation of tbe truck in hauling Irish potatoes, tbe evidence is insufficient to establish between tbe Pulp Company and defendant Euss tbe relationship of principal and agent or that of partnership. However, plaintiff does not contend tbat tbe mere ownership by tbe Pulp Company of an interest in tbe truck would make it liable for personal injuries caused by tbe truck, Parrot v. Kantor, 216 N. C., 584, 6 S. E. (2d), 40; nor does tbe plaintiff contend tbat a partnership would be liable for an injury done by a truck owned by it if tbe driver, even though a partner, be not acting within tbe scope of tbe business and authority of tbe. partnership. 40 Am. Jur. Partnership, sections 136, 137. But tbe plaintiff contends tbat a relation of partnership existed between tbe defendant Euss and Pulp Company with respect to tbe operation of tbe truck for hauling pulpwood and tbat upon tbat being shown, and upon evidence of tbe consent of tbe Pulp Company for Euss to operate tbe truck in hauling Irish potatoes for Ben Aycock being also shown, tbe law will imply tbat tbe partnership was enlarged to cover sucb operation. Non sequitur. Hence, tbe judgment below is Affirmed.