Davidson ex rel. Davidson v. Western Union Telegraph Co.

207 N.C. 790

• Court: Supreme Court of North Carolina
• Decided: February 27, 1935
• Status: Published

Opinion

Stacy, C. J.

The case is here on demurrer to the evidence, which amply supports the verdict. This is sufficient on motion to nonsuit. C. S., 567; Lincoln v. R. R., ante, 787; Brunswick County v. Trust Co., 206 N. C., 127, 173 S. E., 327; Lumber Co. v. Power Co., 206 N. C., 515, 174 S. E., 427.

It is established by the second issue, under presumably correct instructions, as the charge is not in the record, that Woodrow Mills was acting within the scope of his authority as an employee of the corporate defendant when the injury occurred. It is likewise in evidence that the defendant knew, or should have known, that Mills was in the habit of using his automobile to deliver messages. This distinguishes the case from Hughes v. Tel. Co., 211 Iowa, 1391, 236 N. W., 8, and Kennedy v. Union Charcoal & Chem. Co., 156 Tenn., 666, 57 A. L. R., 733, cited and relied upon by appellants.

Tbe defendant’s evidence, which conflicts with that tending to support the plaintiff’s claim, is not to be considered on demurrer or motion to nonsuit. Harrison v. R. R., 194 N. C., 656, 140 S. E., 598.

The case was properly submitted to the jury.

No error.

SgheNCK, J., took no part in the consideration or decision of this case.