Winborne v. Stokes

Annotate this Case

78 S.E.2d 171 (1953)

238 N.C. 414


No. 240.

Supreme Court of North Carolina.

October 21, 1953.

*173 W. G. Smith, and Poisson, Campbell & Marshall, Wilmington, for plaintiff, appellee.

Taylor & Allen, Goldsboro, Dees & Dees, Goldsboro, Lindsay C. Warren, Jr., Goldsboro, for defendants, appellants.

DEVIN, Chief Justice.

The appellants excepted to the order denying their motion to vacate the service of process and in their appeal to this Court assign error in that the court's findings of fact upon which the order was based were not supported by the evidence, but they fail to point out what specific findings are without support in the evidence. Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351. However, by their assignment of error that the facts found are insufficient to sustain the court's order they present that question for our consideration and determination. They urge the view that the court's conclusions from the findings of fact set out at length in the order are unwarranted and erroneous.

The statute authorizing constructive service of process on nonresidents whose automobiles are involved in collisions causing injury to person or property in this state applies when the automobile is being operated by the nonresident, or for the nonresident, or under his control or direction express or implied. G.S. § 1-105; Davis v. Martini, 233 N.C. 351, 64 S.E.2d 1; Wynn v. Robinson, 216 N. C. 347, 4 S.E.2d 884.

The court below from the evidence offered found that the facts shown were sufficient to entitle the plaintiff to call to her aid the enabling provisions of G.S. § 1105 *174 to secure service of process on the nonresident defendants in the manner therein prescribed. It was found that the statute had been in all respects complied with.

From an examination of the record we reach the conclusion that the evidence offered was sufficient to invoke the provisions of the statute, and that the court's findings are in accord with the facts shown.

The findings of the trial judge from the evidence and his conclusions thereon from which the defendants have appealed were made and entered only for the purpose of ruling on defendants' motion and to determine the preliminary question of service of process, and hence do not preclude the defendants on the hearing from alleging as a defense to the action that Wm. C. Dail who was driving defendants' automobile at the time of the fatal collision was not acting within the scope of his agency or employment by the defendants at the time of the collision.

Without undertaking at this time to determine the several questions debated in defendants' brief which may arise in the trial of the action after the pleadings are in and the evidence offered, we deem it necessary only to hold that on the record the order denying defendants' motion to vacate the service of process should be, and it is